Ecclesiastical  Law 


RULES  OF  EVIDENCE, 


WITH  SPECIAL  REFERENCE  TO  THE 


Jurisprudence  of  the  Methodist  Episcopal  Church. 


HON.  WILLIAM   J.  HENRY 

AND 

WILLIAM   L.  HARRIS,  D.  D.,  LL.  D. 


CINCINNATI: 

HITCHCOCK    &    WALDEN, 

N  E W    YORK: 

PHILLIPS   <&    HUNT. 

1879- 


Copyright  by 
HITCHCOCK   &  WALDEN, 

1879. 


PREFACE. 


The  word  "  Church,"  as  used  in  the  New  Testament,  in 
ecclesiastical  history,  and  in  general  literature,  has  a  great 
variety  of  meanings.  In  a  limited  sense,  it  is  used  to 
designate  any  particular  denomination  of  Christian  believers, 
professing  one  creed,  observing  the  same  rites,  and  organ- 
ized under  one  ecclesiastical  government.  In  order  to  its 
power,  perpetuity,  and  usefulness  as  a  religious  institution, 
such  a  Church  must  maintain  and  set  forward  a  system  of 
sound  doctrine  and  good  morals,  provide  for  and  support 
evangelical  worship  in  its  simplicity  and  purity,  enjoin  a 
due  observance  of  the  holy  sacraments,  secure  a  faith- 
ful and  impartial  administration  of  godly  Church  disci- 
pline, and  with  all  diligence  labor  to  promote  Scriptural 
holiness  in  all  manner  of  conversation.  The  sphere  of  its 
government  and  discipline  is  purely  spiritual,  and  in  its 
legislation  and  administration  the  Church  should  seek,  in 
all  legitimate  ways  and  to  the  extent  of  its  authority,  to 
prevent  whatever  would  corrupt  its  doctrines,  subvert  its 
order,  interrupt  its  peace,  or  stain  its  purity.  Nothing- 
scandalous  or  offensive  should  be  allowed  in  its  members ; 
every  Christian  and  churchly  duty  should  be  faithfully  ful- 
filled ;  and  all  things  should  be  done  with  seemliness  and 
order,  unto  edification  and  to  the  glory  of  God.  All  these 
things  are,  therefore,  proper  subjects  for  the  thoughtfulness, 
care,  and  authority  of  the  Church. 

In  the  Methodist  Episcopal  Church,  the  authority  to 
make  rules  and  regulations  for  its  government  lies  with  the 
General  Conference,  a  body  meeting  once  in  every  four 
years,  and  composed  of  chosen  delegates  from  the  ministry 
and  from  the  laity  of  the  Church.  This  body  has  full 
powers,  under  certain  specified  restrictions,  to  make  and  en- 


in 


PREFACE. 


force  rules  for  the  government  of  the  moral  and  Christian 
deportment  of  all  the  members  and  ministers  of  the  Church, 
and  also  to  prescribe  such  prudential  regulations  as  may 
seem  necessary  to  the  good  order  and  efficiency  of  the 
church  as  an  ecclesiastical  organization.  So  that  all  disci- 
plinary rules  may,  with  propriety,  be  referred  to  one  or  the 
other  of  two  classes:  (1)  Such  as  relate  to  the  moral  and 
religious  conduct  of  members  of  the  Church  as  professing 
Christians,  and  (2)  Such  as  relate  to  the  order  and  disci- 
pline peculiar  to  the  Methodist  Episcopal  Church  as  a  dis- 
tinct ecclesiastical  organization. 

The  Holy  Scriptures  constitute  the  primal  and  supreme 
standard  of  Christian  character  and  conduct,  and  their 
authority  is  recognized,  maintained,  and  enforced  in  the 
discipline  of  the  Church.  Any  conduct  in  a  member  or 
minister  of  the  Church  which  can  be  shown  to  be  con- 
demned by  the  precepts  and  principles  of  the  Word  of 
God  is  sufficient,  according  to  the  Discipline  of  the  Church, 
to  authorize  and  justify  the  application  of  a  suitable  pen- 
alty to  such  person,  even  though  the  General  Conference 
may  not  have  formulated,  in  the  Book  of  Discipline,  a  dis- 
tinct and  specific  rule  against  that  exact  form  and  mode 
of  delinquency  or  transgression.  The  rules  of  the  Church 
very  properly  require,  also,  of  all  who  would  continue 
their  membership  in  her  communion,  that  they  faithfully 
conform  to  the  order  and  discipline  of  the  Church. 

The  aim  and  purpose  of  Church  discipline  should  be, 
primarily,  not  to  exclude  persons  from  the  Church,  but  to 
keep  them  within  its  pale  so  long  as  such  a  relation  can  be 
made  tributary  to  their  spiritual  interests  and  welfare;  but 
if  they  are  incorrigible,  if  they  will  not  repent  and  reform, 
then  the  aim  and  purpose  of  discipline  is  to  purify  the 
Church  and  vindicate  its  character  and  honor  by  excluding 
the  unrepentant  offender  from  its  communion.  For  all  vio- 
lations of  the  divine  law  as  laid  down  in  the  Holy  Scriptures, 
and  for  all  disobedience  to  the  order  and  discipline  of  the 


PREFACE. 


Church,  the  ultimate  penalty,  if  the  offender  will  not  repent 
and  reform,  is  excommunication.  This  penalty  is  the  judi- 
cial exclusion  of  the  offending  person  from  the  religious 
rites  and  privileges  of  the  Church.  It  is  the  severest  pen- 
alty known  to  Church  discipline,  and  is  founded  upon  the 
nature  of  the  organization,  the  terms  of  admission  to  its  fel- 
lowship, and  upon  a  right  inherent  in  all  religious  societies  to 
withdraw  from  all  fellowship  with  unreasonable  and  wicked 
men,  and  therefore  from  all  responsibility  for  their  conduct. 

In  the  Methodist  Episcopnl  Church  the  power  of  ex- 
communication lies  with  the  minister  or  preacher  in  charge, 
after  the  accused  party  shall  have  been  arraigned  on  specific 
charges  and  shall  have  been  duly  tried  and  convicted  by  a 
jury  of  his  peers  according  to  provisions  laid  down  in  the 
Book  of  Discipline.  The  Constitution  of  the  Church  pro- 
vides that  no  law  or  rule  shall  ever  be  made  by  the  General 
Conference  doing  away  the  privilege  of  accused  ministers  or 
members  of  trial  by  conference  or  committee,  and  of  the 
right  of  appeal.  In  order  that  the  constitutional  guarantee 
should  be  made  good,  it  became  necessary  for  the  General 
Conference  to  create  or  designate  certain  tribunals  for  the 
trial  of  accused  persons — some  of  these  tribunals  to  have 
original,  and  others  appellate,  jurisdiction — and  to  establish 
general  principles  and  rules  of  proceedings  in  all  Church 
trials.  Hence  arose  the  whole  system  of  ecclesiastical 
jurisprudence  of  the  Methodist  Episcopal  Church. 

In  the  first  organization  of  the  Church  the  rules  and 
regulations  for  its  government  were  few  and  simple ;  but  as 
the  Church  grew  and  multiplied,  and  the  conditions  and  cir- 
cumstances of  its  members  as  well  as  of  society  about  them 
were  changed,  the  rules  necessary  for  its  proper  regulation 
and  government  became  more  numerous  and  complex,  so 
that  now  when  a  member  or  a  minister  of  the  Church  is  ac- 
cused of  crime,  or  of  having  indulged  in  improper  tempers 
or  words,  or  of  having  committed  some  imprudent  act,  or 
of  disobedience  to  the  order  and  discipline  of  the  Church, 


TREFACE. 


it  often  becomes  a  difficult  matter  to  determine  what  pro- 
ceedings should  be  instituted  in  the  case,  how  the  accused 
person  should  be  tried,  before  what  tribunal,  and  under 
what  particular  rules  and  regulations.  This  book  has  been 
written  with  the  hope  that  it  may  assist  the  administration 
in  such  cases.  That  among  ten  thousand  pastors,  all  of 
whom  have  to  do  more  or  less  with  the  administration  of 
the  discipline  of  the  Church,  questions  will  frequently  arise 
which  are  not  answered  in  this  book  is  to  be  expected.  It 
could  scarcely  be  otherwise.  It  is  believed,  however,  that 
some  general  principles,  having  a  wide  application  in  the 
practical  administration  of  the  affairs  of  the  Church,  have 
been  determined,  and  that  the  careful  student  of  our 
economy  may  find  this  book  a  valuable  help.  Its  doctrines, 
we  think,  will  be  found  to  be  in  harmony  with  the  princi- 
ples and  polity  of  our  Church,  and  its  rules  of  procedure  to 
be  drawn  from  the  provisions  of  the  discipline  and  usages 
of  the  Church  and  the  analogies  of  civil  government,  so  far 
as  those  analogies  are  at  all  applicable  to  an  ecclesiastical 
government.  In  the  preparation  of  the  work  we  have  felt 
the  want  of  a  line  of  well  established  precedents  or  land- 
marks to  guide  us  in  our  inquiries. 

The  elementary  rules  of  evidence  embodied  in  this 
work,  though  not  voluminous,  will  be  found  to  be  clear  and 
complete,  and  well  sustained  by  citations  from  the  highest 
legal  authorities.  In  submitting  these  rules  we  have  aimed 
to  do  more  than  afford  guides  to  judicial  investigations  before 
the  tribunals  of  the  Church.  We  believe  they  will  be  found 
valuable  for  such  purposes,  but  we  have  endeavored  to  show 
in  addition  that  the  authenticity  of  the  Holy  Scriptures  can 
be  vindicated,  and  their  genuineness  maintained,  by  the 
well  re(!0gniz6d  and  established  rules  of  evidence  received 
and  acted  upon  in  our  courts  of  justice  and  in  our  different 

governmental  relations. 

WILLIAM  J.  HENEY, 
WILLIAM  L.  IIAEEIS. 

September  1,  1878. 


TABLE  OF  CONTENTS. 


Part  First. 

INTRODUCTION, 


Chapter  I. 

PRELIMINARY. 

PAGE. 

Man,  the  Subject  of  Law,    .         .         . 11 

Ecclesiastical  Law,  bow  defined, .  11 

Origin  of  the  Law, 12 

Conflict  between  Human  and  Divine,  the  Human  to  yield  to  the  Divine,  12 

Chapter  II. 

DIFFERENT  PARTS   t)F  A   LAW. 

Declaratory,  Directory,  Remedial,  and  Vindicatory, 12 

Chapter  III. 

RULES  OF  CONSTRUCTION. 

Disciplinary  Rule,  one  of  Addition, 13 

Disciplinary  and  Common  Usage  when  construed  to  be  in  para  materia,    .  13 

Disciplinary  Provisions,  Effect  of,  upon  Common  Usage,         ...  14 

Disciplinary  Provisions,  Incidents  of,  .......  14 

Interpretation,  when  Liberal,  when  Strict,       ......  15 

Construction,  Equity  of, ....  16 

Chapter  IV. 

METHODS  OF  REDRESS. 

By  Act  of  the  Parties,     . 16 

By  proper  Constituted  Tribunals, 16 

Chapter  V. 

THE  ORIGIN  OF  RELIGIOUS  ORGANIZATIONS^ 

The  True  Foundation  of, 17 

Societies,  Religious  and  Civil,  effected  by  Means  of  the  Family  Relation,    .     17 
Societies  incapable  of  existing  without  Rules, 17 

VII 


TABLE  OF  CONTENTS. 


PAGE. 

Central  Power,  Necessity  for,      .........     18 

Punishment,  how  limited, — first,  by   Natural  Justice;    second,  by   Public 

Utility 18 

Civil  Responsibility,  liow  it  differs  from  Criminal,        .         .         .         .         .17 

Chapter  VI. 

THE  EELATION  OF  THE  INTEXT  TO  THE  ACT. 

Rule  adopted  by  our  Civil  Tribunals,       .......         20 

Rule  adopted  by  the  Church, 20 

Violation  of  Civil  Law,  the  Subject  of  Church  Investigation,    ...         21 

Chapter  VII. 

THE  RELATION   OF   THE   CHURCH  TO   THE   CIVIL   GOVERNHIENT. 

The  Connection  between  the  Church  and  the  Civil  Government,          .  .     22 

Combination  between,  tends  to  produce  Progress,    .....  22 

Obligation  of  Membership  in  the  Church,  Voluntary,           .         .         .  .22 

Right  of  Withdrawal, 22 

Ecclesiastical  Matters  in  England  subordinate  to  the  Civil  Government,  .     23 

Methodist  Church,  as  Voluntary  Societies,  how  formed,            ...  23 

Methodist  Church,  separation  of,  from  the  Church  of  England,  .         .  .23 

Chapter  VIII. 

THE  RELATION  OF  THE  CHURCH  TO  THE  CIVIL  COURTS. 

Powers  of  the  Courts  over  the  Church,     .......         24 

Right  of  the  Court  to  interfere  by  Injunction,  when,  .         .         .         .         .24 

Religious  Profession,  a  Constitutional  Guarantee,    .....         25 

Discipline,  Necessity  for  in  Church  Organization,        .....     26 

Chapter  IX. 

OFFENSES  AGAINST  THE  CIVIL  GOVERNMENT. 

Offenses,  malnm  in  sc, 27 

Offenses,  malum  prohihitinv ,       .........     27 

Offenses  against  the  Divine  Law,  incapable  of  Municipal  Recognition,    .  27 

Human  Laws,  Power  of  to  increase  Moral  Guilt,         .         .         .         .  .28 

Human  Laws,  in  Conflict  with  the  Divine,  how  administered,         .         .  29 

Necessity  for  Acts  indifferent.  Foundation,  Social  Regulations,  .         •  .30 

Theocratical  Form  of  Govornment,  hut  one  Example  of,         .         .         .  31 

Chapter  X. 

WHO  ARE  LIABLE  TO  BE  DEALT  WITH  UNDER  THE  DISCIPLINARY  RULES  OF 

THE   CHURCH. 

Idiots,  Imbeciles,  and  Lunatics  are  not,      .......     32 

Foundation  of  Moral  and  Religious  Accountability,         ....         33 


TABLE  OF  CONTEXTS.  ix 


Chapter  XI. 

MOTIVE   OR  INTENT. 

PAGE. 

Concurrence  between  the  Mind  and  the  Act,       ......     34 

Intent,  how  viewed  by  our  Civil  Tribunals,       ......         34 


Chapter  XII. 

IGNORANCE  HOW  FAR  AN  EXCUSE. 

Ignorantia  Juris  non  exciisai, 34 

Justice  of  this  Rule,  when  applied  to  Offenses  that  are  malum  in  se,        .  35 

Ignorantia  facti  excusaf,     ..........  35 

Difference  between  Willful  Wrong  and  Gross  Carelessness,      ...  35 

Chapter  XIII. 

INTENDED   RESULT. 

Effect  of,  where  the  Motive  is  Good,    ........     36 

Effect  of,  where  the  Motive  is  Bad, 36 

Result,  measured  either  by  the  Intent  or  the  Purpose,         .        .         .         .37 

Chapter  XIV. 

WHO  ARE  AMENABLE  TO  THE  JURISDICTION  OF  THE  CHURCH. 

Test  of  Jurisdiction  in  this  Country  is  Membership,         ....  37 
Jurisdiction  in  England  was,  first.  Pecuniary;    second,  Matrimonial;    and 

third.  Testamentary;  and  did  not  depend  upon  Membership,         .  .     37 

Jurisdiction,  Defect  of,  Want  of  Power  to  enforce  Sentences,           .         .  38 

Jurisdiction,  how  aided  by  a  Court  of  Chancery,          .         .         .         .  .40 

Methodist  Church,  Jurisdiction  of,  how  limited,        .....  41 

Relation  of  a  Member  to  the  Church,  a  Covenant  Relation,         .         .  .41 


Part  Second. 

CHURCH    GOVERNMENT. 


Chapter  I. 

THE  GOVERNMENT  OF  THE  METHODIST  EPISCOPAL  CHURCH. 

Power  of  the  Church  vested  in  a  General  Conference,  Annual  Conferences, 
District  Conferences,  Quarterly  Conferences,  Bishops,  Presiding 
Elders,  and  Preachers,        .........     44 


TABLE  OF  CONTENTS. 


Chapter  II. 

THE  GENERAL  CONFERENCE. 

PAGE. 

Composed  of  Ministerial  and  Lay  Delegates,  ......  44 

Delegates,  how  and  by  whom  chosen,           .......  44 

General  Conference,  Quorum  for  the  Transaction  of  Business,        .         .  45 

General  Conference,  by  whom  presided  over,       ......  45 

General  Conference,  Restrictive  Eules,  how  regarded,      ....  45 

General  Conference,  distribution  of  Powers  of,  into  Executive,  Legislative, 

and  Judicial,         ...........  46 

General  Conference,  Power  to  pass  ex  post  facto  Laws,            .         .         .  4"? 

Executive  and  Ministerial  Powers  of  the  Bishops,        ...         .         .  48 

General  Conference,  Supreme  Judicial  Body  of  the  Church,    ...  49 
General  Conference,  Original  Jurisdiction,  how  limited,      .         .         .         .49 

Chapter  III. 

THE  JUDICIAL  CONFERENCES. 

Appellate  Jurisdiction  in  Cases  of  Appeal, 51 

Have  no  Original  Jurisdiction,    .........     52 

Triers  of  Appeals,  selected  by  Annual  Conferences,         ....         52 

Chapter  IV. 

JUDICIAL  POWERS  OF  AN  ANNUAL  CONFERENCE. 

Annual  Conference,  Power  to  appoint  a  Select  Number,     .         .         .         .53 
Annual  Conference,  has  Appellate  Jurisdiction, 54 

Chapter  V. 

THE  JUDICIAL  POWERS  OF  A  DISTRICT  CONFERENCE. 
Limited  to  the  Trial  of  Local  Preachers, 64 

Chapter  VI. 

THE  POWERS  OF  THE  BISHOPS. 

Election,  Term  of  Office,  and   Authority,  defined  by  the  Discipline  and 

Usages  of  the  Church,      .........  55 

Right  to  decide  Questions  of  Law  when  presiding  Judicially,      .         .         .56 

Right  to  preside  over  Judicial  Conference,        ......  57 

Right  to  preside  over  Book  Committee,        .......  57 

Right  to  preside  in  the  General  Conference,  when  exercising  Appellate 

Jurisdiction,      ...........  58 

Difference  between  the  Duties  of  a  Bishop,  when  presiding  in  an  Annual 

or  Judicial  Conference,  and  when  presiding  in  the  General  Conference,  59 


TABLE  OF  CONTEXTS. 


Chapter  VII. 

THE  JUDICIAL  POWEES  OF  A  PRESIDING  ELDER. 

PAGE. 

Duties  of,  subordinate  to  a  Bishop, 59 

Power  of,  to  change  a  Preacher,      .         .         .         .         .         .         .         .         59 

Authority  to  decide   all  Questions   of  Law,  subject  to   an   Appeal  to  the 

President  of  the  next  Annual  Conference,  .         .         .         .         .60 

Duty  of,  where  a  Preacher  is  accused  of  Crime,  to  assemble  a  Committee, 

and  to  preside  at  Trial,     .         .         .         .         .         .         .         .         .         61 

Chapter  VIII. 

THE  JUDICIAL  POWERS  OF  MINISTERS  IN"  CHARGE. 

Where  a  Member  is  accused  of  Immoral  Conduct,       .         .         .         .         .61 
Power  of,  to  preside  in  a  Quarterly  Conference,       .....         61 

Chapter  IX. 

THE  TRIAL  OF  A  BISHOP. 

The  General  Conference  to  order  the  Manner  of  Trial,        .         .         .         .62 
The  Appeal  of  the  Bishop  to  be  tried  in  Open  Confi^rence,      ...  63 

General  Conference,  hag  no  Power  to  refer  the  Trial  of  a  Bishop  to  a  Select 

Number, 63 

Judicial  Conference  for  the  Trial  of  a  Bishop,  .....         64 

Charges  against  a  Bishop,  and  by  whom  prepared,      ....         .64 

Duty  of  a  Bishop  to  preside  at  the  Trial  of  a  Bishop,      ....         64 

Power  of  a  Bishop  to  convene  the  Judicial  Conference  for  the  Trial  of  a 

Bishop,  ............     65 

Investigation  of  Chai-ges  against  a  Bishop,  confined  to  the  Charge  of  Im- 
morality, ...........         (55 

Imprudent  Conduct  of  a  Bishop,  how  dealt  with,  .         .         .         .         .65 

A  Single  Specification,  charging  Imprudent  Conduct,  not  sufficient,        .         66 
Acquittal  of  a  Bishop,         ..........     66 

Chapter  X. 

PROCEEDINGS  AGAINST  TRAVELING  MINISTERS. 

Duty  of  Committee  to  suspend,  when  found  Guilty,  .         .         .         .  67 

Examination  of  Committee,  a  Preliminary  One, 68 

Charges  against  a  Minister  at  the  Annual  Conference  may  be  referred  to  a 

Committee,       ...........  68 

Preliminary  Proceedings  against  a  Minister,        ......  69 

Where  a  Minister  fails  in  Business,  or  contracts  Debts  and  behaves  Dis- 
honestly, he  may  be  tried  under  ^  203, 69 

Where  a  Minister  disseminates  Doctrines  contrary  to  the  Articles  of  Re- 
ligion, liable  to  be  dealt  with  before  the  Annual  Conference,         .         .  69 


Xii  TABLE  OF  CONTENTS. 


PAGE. 

Where  a  Minister  refuses  to  attend  to  the  Work  assigned  him,  liable  to  be 

dealt  with  under  ][  203  of  the  Discipline, 70 

Finding  of  a  Presiding  Elder's  Committee,  no  Bar,  .  .  .  .  .71 
Accused  Minister  may  be  convicted  on  Circumstantial  Evidence,  .  .  71 
Power  of   the  Presiding  Officer  to  interfere  where  there  is  a   Failure  to 

prove  Matei'ial  Facts,  .........     74 

Chapter  XI. 

TRIAL  OF  SUPERANNUATED  AKD  SUPERNUMERARY  PREACHERS. 
Authority  of  an  Annual  Conference,  in  which  he  resides,  to  try,      .         .         75 

Chapter  XII. 

TRIAL  BY  AN  ANNUAL  CONFERfeNCE  COMiHTTEE. 
Finding  of  Committee  Preliminary,    ........     76 

Chapter  XIII. 

PROCEEDINGS  AGAINST  A  PREACHER  ON  TRIAL. 

Held  accountable  to  the  Quarterly  Conference,         .....         77 
In  other  P^espects  amenable  to  the  Annual  Conference,       .         .         .         .77 
Annual  Conference  exercises  over  a  Preacher  on  Trial  nothing  but  an  Ap- 
pellate Jurisdiction,  .........         78 

Chapter  XIV. 

PROCEEDINGS  AGAINST   LOCAL   PREACHERS. 

Trial  before  Quarterly  or  District  Conference,     ......     79 

Chapter  XV. 

THE  TRIAL  OF  AN  ACCUSED  MEMBER. 

A  Member  is  only  amenable  to  the  Society  to  which  he  belongs,  .  .  81 
Accused  Member  may  bo  tried  before  a  Committee  of  not  less  than  five,  .  81 
Regular  Charges  and  Specifications  should  be  made  out,  ...         82 

Chapter  XVI. 

MODE  OF   STATING    FACTS   IN   THE  COMPLAINT. 

Words  in  a  Complaint  to  have  their  Ordinary  Use,  .  .  .  .  .82 
Certainty  of,  in  a  Complaint, — first,  Common  Intent;  second,  Certain  Intent 

in  General ;  third.  Certain  Intent  in  Every  Particular,  ...  83 
Pleadings  taken  most  strongly  against  the  Pleader,  .  .  .  .  .84 
One  Specification  can  not  be  employed  to  aid  another,  ....  85 
Arguments,  Inferences,  or  Matters  of   Law  should  not  be  set  forth  in  a 

Complaint,  ............     85 


TABLE  OF  CONTENTS. 


Chapter  XVII. 

THINGS  JUDICIALLY  TAKEN^    NOTICE    OF  "WITHOUT    PLEADINGS  OR  PROOF. 

The  Methodist  Episcopal  Church  tabes  Notice  ex  officio  of  the  Government  page. 
of  the  Church,    .         .        .         .         .         .         .         .         .        .         .88 

Chapter  XVIII. 

IS   AN   ECCLESIASTICAL  TRIAL   CRIMINAL   IN   CHARACTER? 

Church  Trial  often  involves  Matters  that  are  of  a  Civil  Nature,     .         .  89 

Criminal  Proceedings  are  carried  on  in  the  Name  of  the  Government, 

Civil  Proceedings  in  the  Name  of  the  Party  complaining,  .         .       00 

A  Church  Trial  is  treated  by  the  Church  as  Criminal,    .         .         .         .  01 

Effect  of  a  plea  of  autrefois  acquit,   or  autrefois  convict,   in   a  Church 

Trial, 02 

Not  liable  to  be  twice  tried  for  the  same  Offense  is  a  Rule  subject  to 

Certain  Qualifications,    . 04 

Chapter  XIX. 

LmiTATIONS  ON  PROSECUTIONS. 
Not  directly  applicable  to  a  Church  Trial, 96 

Chapter  XX. 

PROCEEDINGS  PRELIMINARY   TO   A   TRIAL. 

Charges  and  Specifications  should  be  made  out  against  the  Accused,     .  102 

Charges  should  be  so  drawn  as  to  indicate  the  Offense,      .         .         .  .103 

Charges  should  be  accompanied  with  one  or  more  Specifications,           .  103 

Preacher  or  Presiding  Officer  to  fix  the  Time  and  Place  of  Trial,     .  .103 
Order  in  which  the  Different  Steps  in  the  Conduct  of  a  Trial  should  be 

taken, 104 

Waiver  of  Previous  Preliminary  Proceedings,  .         .         .         .         .  .105 

Peremptory  Challenge,  Number  allowed  to  the  Accused,        .         .         .  105 

Challenge  for  Cause,  when  made,      .         .         .         .         .         .         .  .105 

Privilege  of  the  Prosecution  to  state  the  Case, 1 06 

Party  allowed  to  manage  his  own  Cause,  ....                  .  .     106 


Part  Third. 
evidence 


Chapter  I. 

Every  Science  has  its  Rules  of  Investigation, 108 

Evidence  is  of  two  Kinds,  Parol  and  Written,        .         .         .         .         .         108 


TABLE  OF  CONTENTS. 


Chapter  II. 

INCOMPETENCY   OF  WITNESSES. 

PAGE. 

The  Law  rejects  the  Testimony  of  Certain  Persons  when  under  defect  of 
Understanding,  under  defect  of  Religious  Principle,  and  when  Char- 
acter of  Witness  is  Infamous,     .         .         .         .         .         .         .         .110 

Pei'sons  Deaf  and  Dumb  are  not  Incompetent,       .         .         .         .         •         111 

Idiots  and  Lunatics  Incompetent,      .         .         .         .         .         .         .         .112 

Court  authorized  to  decide  on  its  own  View.  .         .         .         ,         .         112 

Children  of  any  Age  Competent,       .         .         .         .         .         .         .         .113 

A  Want  of  Moral  Accountability  to  God  renders  Witness  Incompetent,         114 

Chapter  III. 

INCOMPETENCY   FROM  CONVICTION   OF   CRIME. 

Infaina  Juris  excludes  the  Witness  as  Incompent,         ....         118 

Infamafacti  goes  to  Witness's  Credibility,         .         .         .         .         .         .118 

Legal  Infamy,  how  proved,    .........         119 

Effect  of  a  Pardon, 120 

Chapter  IV. 

ACCOMPLICES. 

Competent  as  Witnesses, 120 

Approvement,  History  of,  .         .         .         .         .         .         .         .         .121 

Uncorroborated  Testimony  of  an  Accomplice  ought  to  receive  Confirma- 
tion,         122 

Judges  may  advise  an  Acquittal  when  an  Accomplice  is  not  corroborated,     123 

Chapter  V. 

HUSBAND  AND  WIFE. 

Not  Competent  when  offered  as  a  Witness  for  or  against  each  other,         .  124 
One  Ground  of  Exclusion  is  based  upon  Public  Policy,          .         .         .  125 
In  Bastardy  Cases,  Wife  not  Competent  to  prove  Non-access  of  the  Hus- 
band,             128 

Wife  not  Competent  against  a  Co-defendant  tried  with  her  Husband,     .  129 
Incompetent  if  offered  as  a  Witness  during  the  Existence  of  the  Relation- 
ship,             130 

Rule  of  Exclusion  extends  only  to  Lawful  Marriages,    .  .         .         .  131 

Declarations  of  Husband  and  Wife,  when  Part  of  the  res  gestce,        .         .  132 

Chapter  VI. 

THE  EXCLUSION  OF  EVIDENCE  BASED  UPON  PUBLIC  POLICY. 

Extends  to  Husband  and  Wife,  Attorney  and  Client,  Clergymen  and  Medi- 
cal Persons  to  a  Certain  Extent,  Heads  of  Departments  of  the 
General  or  State  Government,  Military  Officers,  President  of  the 
United  States,  and  Governor  of  a  State, 134 


TABLE  OF  CONTENTS. 


PAGE. 

Communications  to  Senators  Privileged,   .......  135 

Communications  to  Grand  Juries  privileged,           .         .         .         .         .  135 

Privilege  extends  only  to  Communications  made  in  a  strictly  Professional 

Relation, 139 

Communications  made  to  Counsel  assisting  in  a  Church  Trial,  Privileged,  144 

Ministers,  Communications  to,  Privileged  in  many  of  the  States,      .         .  145 

Communications  to  Judges  and  Arbitrators,  Privileged,          .         .         .  147 

Ofifers  of  Comcromise,  Privileged, 148 

Chapter  VII. 

MATTERS  OF  PUBLIC  INTEREST. 
Declarations  and  Entries  made  by  a  Deceased  Person  received  as  Primary 

Evidence, 150 

The  Establishment  of  one  Fact  connected  with  others,  affords  a  Presump- 
tion in  favor  of  a  Fair  Entry,     ........     150 

When  Entries  are  offered,  it  is  Competent  for  the  Opposite  Party  to  point 

out  any  Sinister  Motive,  ........         152 

Entries  admissible  as  Part  of  the  res  ^reste, 153 

Declarations  and  Entries,  when  made  against  Interest,  admissible,        .  154 

Admissions  accompanying  Possession,  receivable  in  Evidence,  .         .     15G 

Chapter  VIII. 

DYING   DECLARATIONS. 
Limited  to  Cases  of  Homicide,  where  Death  is  the  Subject  of  Investigation,     158 
Declarant  must  be  in  extremis,  .        .         .         .         .         .         .         .158 

Dying  Declarations  are  not  receivable  where  the  Party  has  no   Moral 

Sense  of  Accountability,         ...         .....         1(50 

Dying  Declarations,  should  be  Complete  in  themselves,     ,         .         .         .161 
Court  in   the  First  Instance  must  determine   upon  the  Admissibility  of 

Dying  Declarations,        .........         162 

Chapter  IX. 

ANCIENT  POSSESSIONS. 
Not  admissible  in  favor  of  Private  Rights,  except  where  they  constitute  a 

Part  of  the  ?-es  i7este,         .         . 164 

Ancient  Possession   coming  from  the  Proper   Custodian,   Proof  of   the 

Genuineness  of  the  Bible,        .         .         .         .         .         .         .         .         165 

Distinction  between  Documents  that  bear  Date  ante  litem  motam  and  post 

litem  motam,      .        .         .         .         .         .         .         .         .         .         .165 

Ancient  Boundaries,  Traditional  Evidence,  admissible  in  support  of,      .         166 
Traditionary  Evidence,  when  not  of  a  Public  Nature,  inadmissible,    .         .168 

Chapter  X. 

^rATTERS  OF  PUBLIC   AND   GENERAL  INTEREST. 

All  Persons  presumed  to  be  conversant  with  Matters  of  Public  Concern,  .     170 
TMs  Class  of  Evidence  must  ante-date  the  Time  of  Legal  Memory,       .         171 


TABLE  OF  CONTENTS. 


PAGE. 

Declarations  after  the  Commencement  of  the  Controversy  not  receivable,  172 

Declarations  in  Case  of  Pedigree,  receivable, 173 

Includes  Documentary  Evidence  as  well  as  Oral, 174 

Maps  and  Verdicts,  Evidence  in  Questions  of  Public  Interest,           .         .  174 

Chapter  XI. 

TESTIMONY  OF  DECEASED  WITNESSES  ON  A  FORMER  TRIAL. 

Is  admissible  in  another  Trial  of  the  same  Cause,  ....  175 

Not  admissible  in  Criminal  Cases, 177 

The  Parties  must  be  the  same, 177 

Admissible  against  Parties  and  Privies,     .......  179 

Sufficient  that  the  Witness  can  give  the  Substance  of  the  Language  used 

by  the  Deceased  "Witness,         ........  182 

Must  be  Ancillary  Proof  of  Death, 183 

Where   a  Witness  is   beyond   Sea   or  kept  away  by  Opposite  Party,  his 

Former  Testimony  receivable,  .......  184 

Chapter  XII. 

DECLARATIONS  OF  AGENTS. 

When  Agent's  Acts  bind  the  Principal,  his  Declarations  are  Evidence,  186 

Declarations  or  Narratives  of  Past  Transactions,  not  admissible,       .         .  186 

Identity  of  Principal  and  Agent,  .......  187 

Agent  can  not  enlarge  his  Authority  by  Declarations  or  Acts,  .  .  .  191 
One  who  deals  with  an  Agent,  must  take  Notice  of  the  Limitations  of  the 

Agent's  Authority, 193 

A  Party  dealing  with  an  Agent  trusts  him  beyond  the  Limits  of  his  Power,  196 

Exception  in  Case  of  Booksellers  and  Proprietors  of  Newspapers,    .    -     .  197 

Chapter  XIII. 

HEARSAY  EVIDENCE. 

Hearsay  Evidence  inadmissible, 200 

Difficulty  in  distinguishing  between  Original  and  Hearsay  Evidence,         .  201 
Pain   of   Body  and  Mind  proper  Subjects  of   Proof  where  they  are  the 

Natural  expression  of  Feeling,        .......  203 

Pedigree,  which  includes  Descent,    Parentage,  etc.,  constitutes  an  Ex- 
ception,        206 

So  the  Tacit  Recognition  of  Relationship  and  Devolution  of  Property,  208 

Chapter  XIV. 

RES  GESTJS. 

The  Act  and  Declarations  accompanying  the  Act  constitute  the  res  gesta,  210 
Res  gestce  must  grow  out  of  ihe  Main  Transaction,  but  are  not  confined  to 

any  Particular  Period  of  Time, 213 

Declarations  of  Co-trespasses  may  be  given  in  Evidence  when  they  are 

Part  of  the  Transaction, .         .217 


TABLE  OF  CONTENTS.  xvii 


Chapter  XV. 

BURTHEN    OF   PROOF. 

PAGE. 

The  Party  affirming  is  ordinarily  bound  to  assume  the  Burden  of  Proof,  .  221 
Exceptions  to  this  Rule  where  the  other  Party  admits  a  prima  facie  Case 

and  relics  on  Affirmative  Matter,     .......  223 

Rcclesiastical  Tribunals  are  governed  by  the  same  Rules,  .  .  .  223 
There  are  Certain  Propositions  Negative  in  Terms,  which  must  be  proved 

by  the  Party  affirming  them,            .......  227 

Burthen  of  Proof  and  Weight  of  Evidence  distinct  in  their  Nature,          .  230 

Chapter  XVI. 

BEST   EVIDENCE  TO   BE   GIVEN. 

The  Scope  of  this  Rule  excludes  Evidence  merely  Substitutional,  where 

Primary  Evidence  is  attainable,      .......  231 

Does  not  extend  to  a  Question  of  which  is  Weaker  or  Stronger  Proof,      .  232 
The  Question  more  frequently  arises,  where  Oral  Evidence  is  offered,  in- 
stead of  Written 234 

Exception  where  the  Record  or  Writing  is  merely  a  Collateral  Fact,          .  235 

Declarations  of  Tenants  admissible  where  the  Leasing  is  in  Writing,  .  236 
Also,  where  the  Facts  are  Voluminous  and  involve  the  Inspection  of  many 

Books  and  Papers.     ..........  238 

Also,  Inscriptions  on  Walls  and  Fixed  Tables, 239 

Also,  where  a  Witness  is  sworn  on  the  voir  dire,        .....  239 

Also,  where  the  Instrument  is  Collateral  to  the  Principal  Facts,     .         .  241 

Chapter  XVII. 

THE   SUBSTANCE  OF  THE  ISSUE. 

Issue  defined  to  be  a  Single,  Certain,  and  Material  Point,          .         .  .     243 

It  is  either  an  Issue  of  Law  or  of  Fact,         ......  243 

Allegations  of  Matter  of  Substance  must  be  substantially  proved,     .  .     244 

Allegations  of   Matter  of   Descriptive  Identity  must  be  literally  proved,  244 

Allegations  which  narrow  and  limit  necessarily  Descriptive,           .         .  245 

The  same  Principle  applies  in  Criminal  as  in  Civil  Proceedings,        .  .     250 

It  is  not  necessary  to  aver  that  a  Contract  is  in  Writing,        .         .         .  252 

The  Distinction  between  Redundancy  in  Allegation  and  in  Proof,  .     254 

Doctrine  of  Amendments  not  applicable  to  Church  Trials,     .         .         .  256 

Chapter  XVIII. 

RELEVANCY   OF   EVIDENCE. 
Duty  of  the  Presiding  Officer  to  determine,       .         .         .      -  .         .         .     257 
If  the  Evidence  offered  constitutes  a  Link  in  the  Chain,  it  is  admissible,        258 
Departure  from  the  Strict  Rule  allowable  in  Certain  Cases,    .         .         .         258 
A  Party  by  his  own  Acts  may  exclude  an  Inquiry  into  Facts  which  would 

otherwise  be  relevant, .     260 

Evidence  may  be  relevant  under  one  Specification,  and  not  under  another,     261 

2 


TABLE  OF  CONTENTS. 


Chapter  XIX. 

COLLATERAL    FACTS. 

PAGE. 

A  Party  not  permitted  to  inquire  into,  even  on  Cross-examination,  .  .  262 
Where  the  Intent  of  the  Party  forms  Part  of  the  Matter  in  issue,  other 

Acts  not  in  issue  may  be  given  in  Evidence,  ....         264 

Chapter  XX. 

ADMISSIBILITY  OF  EVIDENCE  OF  GENERAL  CHARACTER. 

English  Cases  opposed  to  the  Admission  of  this  Character  of  Evidence,  in 

Civil  Cases, 266 

Allowed  in  this  Country  in  Cases  of  Criminal  Conversation,  Seduction, 

and  Breach  of  Promise  of  Marriage, 267 

Plaintifif's  Rank  and  Condition  in  Life  may  be  given  in  Evidence  in  an 

Action  of  Slander, 270 

Chapter  XXI. 

PRESUMPTIVE  EVIDENCE. 

That  which  may  be  reasonably  inferred  from  Facts  proved,  .  .  .  276 
Presumptive  Evidence,  admissible  in  Criminal  Prosecutions  as  well  as  in 

Civil  Cases, 278 

Presumptions  are  of  two  kinds, — Presumptions  of  Law  and  Presumptions 

of  Fact, 279 

Presumption  that  the  Motive  of  a  Party  corresponds  with  his  Acts,        .  284 

Records  of  Courts  conclusively  presumed  to  have  been  correctly  made,  .  289 
Presumptions  in  Favor  of  Verdicts  that  they  were  founded  on  SuflBcient 

Evidence, 290 

Maxim  probatis  extremis  prcesumitur  media, 292 

Presumptions  that  are  termed,  in  Law,  Estoppels,         ■        .        .        •  294 


Part  Fourth. 

WRITTEN    EVIDENCE. 


Chapter  I. 

PRELUDE. 

Writings  are  either  Public  or  Private, 297 

Chapter  II. 

THE  ADMISSIBILITY  AND  EFFECT  OF  EVIDENCE  OF  JUDGMENTS  AND  VER- 
DICTS, AND  OF  SENTENCES  IN  ECCLESIASTICAL  COURTS. 

Records  or  Memorials  of  the  Proceedings  of  the  Legislature  and  of 

Courts  of  Justice, 297 


TABLE  OF  CONTENTS.  Xix 

PAGE. 

A  Record  will  not  be  conclusive  as  to  Allegations  that  were  not  Material,  298 

Records  are  not  Evidence  against  a  Stranger, 300 

Verdicts   and  Judgments   are  receivable  in  Evidence  against  the  Party 

beneficially  interested, 301 

Chapter  III. 

VERDICTS  AlfD  JUDGirENTS  WHEN  ADmSSFBLE    HJ    EVIDENCE  CONSIDERED 
■WTTH  REFERENCE  TO  THE  PARTIES. 

A  Record  of  Conviction  of  a  Principal  is  not  Evidence  against  the  Re- 
ceiver of  Stolen  Property,  ........  304 

Verdicts  and  Judgments  are  only  Evidence  between  the  same  Parties  and 

Privies,  ............  ."04 

Exception  when  offered  to  prove  the  mere  Fact  of  its  own  Rendition  and 

the  Legal  Consequences  resulting  from  such  Fact,     ....  305 

Also,  when  offered  by  Wav  of  Inducement,    ......  306 

Also,  admissible  when  a  muniment  of  a  Party's  Estate,    ....  307 

Ecclesiastical  Courts  are  not  recognized  as  having  Judicial  Authority,  .  309 
Their  Determinations  are  conclusive  for  the  Purpose  of  establishing  the 

Legal  Status  of  the  Parties, 312 

Sentences  of  Ecclesiastical  Courts,  how  considered  in  a  Criminal  Suit,  317 

Chapter  IV. 

ADOTSSIBILITY  AND  EFFECT  OF  FOREIGN  JUDGMENTS. 

It  is  now  settled  that  such  Judgments  are  prima  facie  Evidence,  and  the 

Defendant  may  impeach  them,        .......  320 

Rule  is  otherwise  with  reference  to  the  Judgments  of  a  Sister  State,         .  321 

So  also  with  reference  to  Foreign  Sentences  fixing  the  Status  of  Persons,  323 

The  Effect  of  ex /?aj'fe  Decrees  of  Divorce,    ......  330 

Judgments,  in  order  to  be  admissible  in  other  States,  to  be  authenticated 

by  the  Clerk  and  Seal  and  Certificate  of  Presiding  Magistrate,  .  331 

Records  of  Justices  of  the  Peace,  proved  in  accordance  with  the  Law  of 

the  State  where  they  are  offered, 332 

Chapter  V. 

PUBLIC  DOCUIMENTS. 

Inspection  of  enforced  by  Rule  of  Court, 334 

Records  and  Documents  that  partake  both  of  a  Public  and  Private  Char- 
acter must,  when  offered,  be  determined  to  be  the  one  or  the  other,        33('> 

Public  Documents,  not  Judicial,  may  be  proved  by  the  Great  Seal  of  the 

State, 337 

Copies  of  Records  of  Private  Corporations  are  made  Evidence  in  many 

of  the  States  by  Statute, 339 

Historical  Facts  of  General  Notoriety  may  be  proved  by  General  Repu- 
tation,          340 


TABLE  OF  CONTENTS. 


Chapter  VI. 

PRIVATE  WRITINGS. 

PAGE. 

All  Writings  not  of  a  Public  Character  included  under  this  Title,  .         342 

When  lost,  Proof  that  such  an  Instrument  existed  and  that  Search  has 
been  made  for  it  must  be  offered,  before  the  Foundation  can  be  laid 
for  the  Inti'oduction  of  Secondary  Evidence, 342 

Where  the  Instrument  is  out  of  the  Jurisdiction  of  the  Court,  its  Contents 

may  be  proved, 343 

Instruments  in  Writing,  Production  of,  enforced  by  Order  of  the   Court 

or  Bill  in  Chancery,    ..........     345 

Notice  to  the  Opposite  Party  to  produce,  necessary  before  Secondary  Evi- 
dence is  admissible, 346 

Interlineations  and  Alterations,  Presumption   that  they  were  made  after 

Execution, 350 

Alterations  by  a  Stranger,  Burthen  upon  the  Party  alleging,  to  prove  that 

they  were  made  without  Consent, 352 

Subscribing  Witness  must  be  produced  or  Absence  accounted  for,     .         .     355 

Exceptions  to  this  Rule, .         35fi 

Where  there  is  no  Subscribing  Witness,  Proof  of  the  Genuineness  of  the 

Signature  of  the  Maker  sufficient, 364 

Comparison  of  handwriting  of  Documents  in  Evidence,  allowed,  .         365 


Part  Fifth. 

PRACTICE 


Chapter  I. 

THE  ATTENDANCE  OF  WITNESSES. 

Enforced  by  Subpcena  ad  testificandum,    .......  367 

By  Attachment  for  Contempt, 367 

Where  Witness  is  out  of  the  State,  no  Power  to  compel  his  Attendance,  369 

The  Church  has  no  Authority  to  compel  the  Attendance  of  Witnesses,      .  370 
The  Discipline  provides  that  Members  of  the  Church  and  others  shall  be 

Competent  Witnesses, .  370 

When  Deposition  has  been  taken,  may  be  read  by  either  Party,      .         .  372 

Ex  parte  Affidavits  not  as  a  General  Rule  admissible  as  Evidence,  .         .  375 

Depositions  taken  in  a  Former  Suit  Evidence  between  Parties  and  Privies,  376 

Chapter  II. 

THE  EXAMINATION  OF  WITNESSES. 
The  Object  of  Examination  is  to  elicit  the  Truth,  ....         378 

Practice  in  the  Direct  Examination   of  Witness,  not  to  allow  Leading 

Questions, 379 


TABLE  OF  CONTENTS. 


PAGE. 

Witness  to  be  first  examined  by  the  Party  calling  him,           .         .         •  360 
Great  Latitude  is  allowed  in  the   Mode  of   putting  Questions  in  Cross- 
examination,      .         .         .         .         .         .         .         .         .         .        .381 

Examiner  to  treat  Witness  with  Entire  Fairness,  .....  381 

Witness  should  not  be  cross-examined  as  to  Matters  wholly  irrelevant,       .  382 

Exceptions  to  that  Rule,         .........  38.S 

A  Witness  should  only  testify  to  Facts  within  his  own  Knowledge,     .         .  384 

Opposite  Party  has  a  Right  to  inspect  Papers  shown  to  the  Witness,      .  385 

The  Latitude  allowed  Presiding  Officer,  in  the  Disposition  of  Business,     .  386 

Testimony  in  Chief  should  be  introduced  by  Counsel  opening,       .         .  387 

Presiding   Officer  at  a  Church  Trial  may  allow  Witness  to  be  recalled,    .  388 

Chapter  III. 

IMPEACHMENT  OF   WITNESSES. 

A  Party  not  permitted  to  impeach  his  own  Witness,       ....  390 

Exceptions  to  this  Rule,    ..........  390 

The  Right  of  a  Party  to  show  that  he  has  been  deceived  by  his  Witness,  391 

Impeachment  by  Proof  of  General  Bad  Character,        ....  392 

Inquiry  restricted  to  Character  of  Witness  for  Truth  and  Veracity,            .  393 

Member  of  the  Church  not  allowed  to  be  impeached  in  this  Way,           .  395 

Impeaching  Witnesses,  not  liable  to  Impeachment,  .....  396 

Impeachment  by  Proof  of  Contradictory  Statements  made  out  of  Court,  397 

Right  to  receive  Confirmatory  Declarations,            .....  399 

Foundation  for  Impeachment  calling  Attention  to  Time,  Place,  and  Person,  400 

Chapter  IV. 

WHEN  A  WITNESS  MAY  REFUSE  TO  ANSWER. 

Extends  only  to  Questions  which  would  expose  him  to  Punishment  or 

Forfeiture, 402 

Witness  to  a  Certain  Extent  allowed  to  judge, 403 

Chapter  V. 

PRESUMPTIONS  IN  FAVOR  OF  WITNESS'S  VERACITY. 

Uncontradicted  Evidence  should  be  believed, 404 

Truth  requires  no  Previous  Education, 405 

Rule  of  Exclusion  of  Witnes.ses,  criticised, 408 

Evidence  necessary  to  convict  for  Perjury, 410 

Chapter  VI. 

THE  RIGHT  TO   OPEN   AND  CLOSE. 

The  Right  to  be  determined  by  the  Presiding  Officer,     ....  412 

The  Party  holding  the  Affirmative  has  the  Right  to  open  and  close,            .  412 

Duty  of  Committee  to  receive  Facts  from  the  Presiding  Officer,    .         .  413 

Duty  of  Committee  to  pass  on  Entire  Question  of  Guilt  or  Innocence,  .  414 

The  Concurrence  of  all  the  Committee  or  Conference  not  required,        .  414 
Presiding  Officer  has  no  Authority  to  grant  a  New  Trial,          .         .         .415 


TABLE  OF  CONTENTS. 


PASE. 

417 


Chapter  VII. 

WHEN  AND  HOW  TO  TAKE  AN  APPEAL. 
An  Appeal  must  be  taken  at  the  Time  of  the  Trial, 

Chapter  VIII. 

PRACTICE  IN  THE  APPELLATE  COURTS. 

Where  the  Trial  is  de  novo  the  same  as  upon  the  Original  Trial,       .        .  418 

"Where  the  Trial  is  on  the  Record,  the  Appellant  hold  the  AfiBrraative,    .  421 

Exceptions  not  taken  on  the  Trial  will  be  disregarded,      ....  422 

Matters  of  Discretion  not  the  Subject  of  Review  upon  Appeal,      .         .  423 

A  New  Trial  may  be  granted  when  Substantial  Justice  has  not  been  done,  426 

A  New  Trial  re-opens  the  Investigation  for  a  Trial  de  novo,       .         .         .  427 


Part  Sixth. 
principles  applied. 


Chapter  I. 

THE  LEGAL  EVIDENCE  OF  THE  AUTHENTICITY  OF  THE  SCRIPTURES. 

Boundary  between  Faith  and  Evidence,  defined,    . 

Degrees  of  Certainty  necessary  to  Behef, 

Mathematical  Certainty,  Moral  Certainty,       .... 

Necessity  for  a  Revelation, 

The  Bible  the  oldest  Authentic  Record,  .... 

Man  essentially  a  Worshiper,     ...... 

Authentic  Record  kept  and  preserved  by  the  Jews, 

The  Relation  of  the  Jewish  Church  to  the  Civil  Government, 

The  Rule  as  to  Confessions  against  Interest, 

Credibility  of  the  Authors  of  the  Sacred  Scriptures, 

Slight  Discrepancies  in  the  Statements  of  the  four  Evangelists, 

Publicity  of  the  Facts,  Presumption  founded  upon,  . 

Christianity  founded  in  the  Seat  of  Pagan  Idolatry, 

Numerous  Historical  Characters  of  the  Bible,  . 

Translation  of  the  New  Testament  into  Different  Languages, 

Tiaditional  Claim  of  the  Churches,   ..... 

Internal  Evidence  of  the  Bible  itself,     ..... 

Morality  of  the  Bible, 

Adaptation  of  the  Bible  to  our  Wants  and  Necessities, 
The  Performance  of  Miracles,  ..... 

Divinity  of  Jesus  Christ,  Foundation  essential  to  Belief, 


Chapter  II. 


Forms  and  Precedents, 


429 
430 
431 
432 
433 
434 
436 
437 
440 
441 
443 
445 
448 
449 
454 
456 
459 
460 
461 
4G3 
465 


469 


Ecclesiastical  Law. 


Part  First. 
INTRO  DUCTION. 


CHAPTER  I. 

PRELIMINARY. 

In  whatever  situation  man  may  be  placed,  he  finds  himself 
under  the  control  of  rules,  emanating  from  an  authority  to  which 
he  is  compelled  to  yield  obedience.  The  moment  he  is  born  he 
is  subject  to  the  will  of  his  Creator.  As  soon  as  he  enters  society 
he  finds  himself  under  the  control  and  dominion  of  social  regula- 
tions and  subject  to  conventional  rules,  to  which,  either  expressly 
or  tacitly,  he  yields  assent.  The  observance  of  these  regulations 
for  the  conduct  and  government  of  society  is  variously  enforced ; 
so  it  may  be  correctly  said  that  each  has  its  own  peculiar  sanc- 
tions, benefits,  burthens,  and  penal  obligations,  without  which 
society,  as  an  organized  body,  could  not  exist. 

We  shall  not  attempt  to  give  a  concise  and  definite  idea  of  the 
term  ''law,"  as  it  is  used  by  law  writers,  abstractly  considered. 
The  definition  given  by  Blackstone  in  his  commentaries  has 
been  criticised  by  various  authors,  but  for  all  practical  purposes 
it  is  sufficiently  accurate.  He  defines  law  to  be  a  rule  of  action, 
dictated  by  some  superior  power.  But  it  is  not  in  this  broad 
sense  that  we  propose  to  consider  the  term,  but  in  its  more  re- 
stricted sense  as  applied  to  the  law  of  the  Church;  or,  in  other 
words,  we  only  propose  to  consider  such  laws  as  denote  the  rules 
for  the  government,  not  of  actions  in  general,  but  of  human 
actions  or  conduct  so  far  as  they  aff'ect  our  relations  to  the 
Church,  having  special  reference  to  the  fact  that  the  binding  effi- 
cacy of  those  laws  has  its  foundation  in  actual  membership. 

11 


12  ECCLESIASTICAL  LAW. 

There  is  a  difference,  well  defined  and  recognized,  between 
such  laws  as  are  enacted  by  the  Creator  and  such  laws  as  are 
enacted  and  have  their  force  and  efficacy  from  human  authority. 
Ethical  writers  have  referred  the  origin  of  all  law  to  one  or  the 
other  of  two  sources — nature  and  revelation.  Clearly,  however, 
the  distinction  between  the  law  of  revelation  and  the  law  of 
nature  is  not  substantive.  The  distinction  consists  not  in  the 
origin  of  the  law,  but  in  the  evidence  by  which  it  is  estab- 
lished and  the  means  employed  for  its  enforcement.  In  this 
view  of  the  matter,  human  authority  should  not  be  suffered  to 
come  in  conflict  with  the  natural  or  revealed  law,  any  more  than 
the  statute  of  a  State  should  be  suffered  to  come  in  conflict  with 
the  State  Constitution ;  but  when  there  is  a  conflict,  the  human, 
as  we  shall  hereafter  show,  should  yield  to  the  superior  authority. 
There  are,  however,  a  great  many  indifferent  points  which 
both  natural  and  divine  law  leave  mankind  or  society  at  liberty 
to  enact,  and  which  are  found  necessary  to  be  established  or  re- 
stricted within  certain  limits  for  the  well-being,  benefit,  and  good 
order  of  society. 

CHAPTER  II. 

THE    DIFFERENT   PARTS    OF   A    LAW. 

Ecclesiastical  law,  like  municipal  or  civil  law,  may  be 
divided  into  four  parts:  the  declaratory,  the  directory,  the 
remedial,  and  the  vindicatory.  The  declaratory  part  is  that 
whereby  the  right  to  be  observed  and  the  wrong  to  be  avoided 
are  clearly  defined.  The  directory  part  is  that  whereby  the  in- 
dividual or  subject  is  instructed  and  enjoined  to  observe  those 
rights  and  to  abstain  from  those  wrongs  fixed  and  determined  by 
the  declaratory  part  of  the  law.  The  remedial  part  is  that  where- 
by a  method  is  pointed  out  by  which  a  man  may  recover  or  vindi- 
cate his  private  rights  or  redress  liis  private  wrongs.  The  vindi- 
catory part  of  the  law  is  that  whereby  it  is  signified  what  penalty 
sliall  be  incurred  by  those  who  commit  public  wrongs  or  who  neg- 
lect their  duty  to  society  or  to  the  Church  as  members  thereof.^ 

'  The  Church,  in  a  moral  or  spiritual  sense,  signifies  a  society  of  persons 
who  profess  the  Christian  religion;    and  in  a  physical  or  material  sense,  the 


RULES  OF  CONSTRUCTION.  13 


CHAPTER  III. 

RULES   OF   CONSTRUCTION. 

In  treating  this  subject  we  shall  find  it  necessary  to  enter 
somewhat  into  a  consideration  of  the  general  doctrine  of  the 
operation  of  disciplinary  rules  and  the  common  or  recognized 
usages  of  the  Church  upon  one  another  as  respects  the  construc- 
tion of  each.  A  disciplinary  rule  is  practically  what  it  purports 
to  be — an  addition  to  the  law  of  the  Church.  It  removes  nothing 
of  the  old  law  or  former  usage  further  than  its  terms,  either  ex- 
pressly or  by  necessary  implication,  require.  It  falls  into  the 
mass  of  the  rules  or  usages  of  the  Church  like  a  drop  of  Avater 
from  the  clouds  into  the  ocean,  mingling  wath  the  mass  and  form- 
ing with  it  one  entire  body.  Where  there  is  neither  an  express 
nor  implied  repeal  of  the  prior  law,  whether  statutory,  disciplin- 
ary, or  common  usage,  the  new  enactment  and  the  disciplinary  rules 
and  the  common  usage  are  to  be  construed  together  as  contracting, 
expanding,  and  attenuating  one  another  into  one  harmonious  sys- 
tem or  doctrine.  All  are  to  be  construed  together  in  pari  ma- 
teria;  that  is,  all  disciplinary  rules  and  all  rules  founded  on  the 
usages  of  the  Church  relating  to  the  same  subject  are  to  be  so 
construed  as  to  harmonize  with  each  other,  and  should  be  con- 
strued according  to  the  known  usages  of  the  Church. 

Legal  propositions  are  like  moral  and  ethical  ones  in  this, 
that  they  do  not  lie  in  parallel  lines  nor  in  straight  lines,  but  on 
the  contrary,  they  converge  and  diverge,  now  intercepting  each 
other,  now  blending  together,  now  operating  unconnectedly. 

Sometimes  a  disciplinary  provision  and  a  provision  founded 

place  where  such  persons  assemble.  The  term  church  is  nomen  collectivum ; 
it  comprehends  the  chancel,  aisles,  and  body  of  the  church.     Ham.  N.  P.  204. 

The  term  Church,  as  it  is  used  in  this  country,  is  ordinarily  used  with  refer- 
ence to  the  religion  established  by  Jesus  Christ. 

Christianity  has  been  judicially  declared  to  be  a  part  of  the  common  law  of 
Pennsylvania,  New  York,  Connecticut,  Massachusetts,  and  several  of  the  other 
States.  11  Serg.  &  Rawle,  394;  5  Binn.  R.  555;  8  John.  291;  2  Swift's  Sys- 
tem, 321. 

To  write  or  speak  contemptuously  against  it  was  at  common  law  an  indict- 
able offense.  Hooper  on  the  Law  of  Libel,  59  and  114  et  seq. ;  1  Russell  on 
Crime,  217;  2  Howard  S.  C.  Rep.  127,  197,  201. 


14  ECCLESIASTICAL  LAW. 

upon  common  usages  of  the  Church,  like  statutory  ones,  may 
stand  together  up  to  a  given  point,  beyond  which  they  come  in 
conflict.  In  such  a  case  the  prior  law  is  not  repealed,  but  the 
one  or  the  other  simply  gives  way  at  the  point  of  difference. 
For  example :  a  statutory  law  of  the  State,  or  a  disciplinary  rule 
of  the  Church  general  in  its  terms,  is  always  taken  subject  to 
such  exceptions  as  the  common  law  of  the  State,  or  as  the  com- 
mon usages  of  the  Church,  require.  Thus  a  statute  will  not 
make  an  act  criminal,  however  pointed  may  be  its  language,  un- 
less the  intent  of  the  maker  of  the  law  is  consistent  with  the 
enactment,  because  the  common  law  of  the  land  and  the  common 
usages  of  the  Church,  as  well  as  common  justice,  require  such 
concurrence  in  order  to  constitute  the  crime.  A  case  of  over- 
whelming necessity  or  of  honest  mistake  of  fact  will  be  ex- 
cepted out  of  the  provisions  and  even  out  of  the  express  letter 
of  the  statute.  This  is  aptly  illustrated  by  Puffendorf.  In  speak- 
ing of  the  rules  of  construction  he  refers  to  a  Bolognian  law 
which  enacted  '^that  whoever  drew  blood  in  the  streets  should  be 
punished  with  the  utmost  severity,"  but  was  held,  after  a  long 
debate,  not  to  extend  to  the  surgeon  who  opened  the  vein  of  a 
person  that  fell  down  in  the  street  Avith  a  fit.  Upon  the  same 
principle  a  disciplinary  provision  may  be  extended,  modified,  or 
controlled  by  the  common  and  received  usages  of  the  Churclu 
It  is  likewise  a  doctrine  of  the  common  law,  and  consonant  with 
reason,  that  all  persons  giving  aid  and  comfort  to  others  commit- 
ting an  offense — even  a  felony — are  to  be  considered  as  princi- 
pals; that  is,  in  legal  contemplation,  committing  the  crime. 
Therefore,  if  a  statute  makes  the  doing  of  a  thing  criminal,  it 
includes  persons  present  lending  their  aid  and  countenance. 
Every  statutory  or  disciplinary  provision  carries  with  it  so 
much  of  collateral  right  and  remedy  as  will  make  its  provisions 
effective. 

Whatever  is  newly  created  by  the  General  Conference  as  the 
law-making  authority  of  the  Church  draws  to  it  the  same  quali- 
ties and  incidents  as  if  it  had  previously  existed  as  a  part  of  the 
usages  of  the  Church,  and  should  be  continued  in  all  other  re- 
spects, as  far  as  possible,  in  harmony  with  the  previously  recog- 
nized policy.  The  foregoing  rules  of  construction  are  not, 
however,  to  nullify  the  plain  meaning  or  the  necessarily  implied 


RULES  OF  CONSTRUCTION.  15 

meaning  of  the  Discipline;  for  where  the  words  are  plain  and 
the  sense  is  unambiguous  there  can  be  but  slight  room  for  these 
rules  of  construction.  There  is,  however,  an  exception  to  this 
rule,  and  that  is,  that  even  if  the  words  are  plain,  yet  where  a 
literal  rendering  would  involve  the  rule  itself  in  an  absurdity,  or 
infringe  natural  rights,  it  should  be  so  expounded  as  to  avoid  the 
absurdity  and  uphold  or  maintain  the  right. 

In  applying  the  various  specific  rules  of  interpretation  and 
construction  to  cases  actually  arising  in  the  administration  of  the 
Discipline,  we  recognize  two  dissimilar  methods  of  interpretation 
and  construction,  namely,  the  one  liberal  and  the  other  strict. 
The  liberal  is  that  in  which  the  sense  is  expanded  in  order  to 
cover  a  larger  space  than  the  language  imports.  The  strict  is 
that  in  which  it  is  contracted  in  a  less  limit  or  space.  But  both 
these  are  variously  modified  according  to  the  requirements  of 
particular  cases.  For  example :  in  applying  the  rule  that  each 
specific  clause  shall  be  made  to  harmonize,  if  possible,  with  the 
general  purpose  of  the  entire  act,  we  may  have  to  employ,  in 
regard  to  all  the  clauses,  an  open  or  close  interpretation,  or  one 
in  one  clause  and  another  in  another  clause,  or  resort  to  a  middle 
course,  such  as  the  blending  of  the  two  in  such  a  manner  as  will 
best  accomplish  the  object.  Then,  to  enlarge  the  idea — since 
when  we  pursue  a  particular  statute  or  disciplinary  act  we  look 
not  at  it  alone,  but  at  the  entire  body  of  the  Discipline  and  the 
rules  and  usages  of  the  Church — it  often  happens  that  in  a  par- 
ticular case  we  find  the  general  spirit  of  the  enactment  urging  us 
to  a  different  interpretation  from  the  one  indicated  Avhen  standing 
alone;  or  we  may  find  all  the  considerations  acting  together 
either  to  expand  the  law  or  to  contract  it.  The  last  rule  of  con- 
struction to  which  we  will  refer  is  this  :  that  cases  may  arise  out- 
side of  the  letter  of  the  statute  and  yet  within  the  mischief  which 
it  was  designed  to  remedy.  In  such  a  case  it  should  be  brought 
within  the  spirit  by  construction,  for  the  reason  that  the  law- 
makers could  not  foresee  all  the  cases  that  would  arise  under  it. 
This  is  what  may  be  termed  the  equity  of  construction,^   and 

^  In  construing  a  statute,  penal  as  well  as  others,  we  must  look  to  the  object 
in  view,  and  never  adopt  an  interpretation  that  will  defeat  its  own  purpose  if 
it  will  admit  of  any  other  reasonable  construction.  The  Emilj  and  the  Caroline, 
6  Curtis,  101. 


16  ECCLESIASTICAL  LAW. 

depends  upon  the  particular  circumstances  of  each  individual 
case.  There  can  be  no  established  rules  and  fixed  precepts  laid 
down  without  destroying  its  very  essence  and  reducing  it  to  a 
positive  law. 

On  the  other  hand,  the  liberty  of  considering  all  cases  in  an 
equitable  light  must  not  be  carried  too  far,  lest  Ave  destroy  all 
law  and  leave  the  decision  of  ever}'  question  in  the  breast  of  the 
administrator — a  thing  greatly  to  be  deplored.  Law  without 
equity  or  equitable  construction,  though  harsh  and  disagreeable, 
is  much  more  desirable  for  the  public  good  than  equity  without 
law,  which  would  make  every  disciplinary  administrator  a  legis- 
lator and  introduce  infinite  confusion,  as  there  would  then  be 
almost  as  many  different  rules  of  action,  or  rules  for  the  govern- 
ment of  the  members  of  society  as  there  are  difi'erences  of  capac- 
ity and  sentiment.^ 

CHAPTER  IV. 

METHODS   OF   REDRESS. 

There  are  but  two  methods  of  redress  for  private  injuries  or 
wrongs,  by  act  of  the  parties  or  by  investigation  before  the 
proper  constituted  tribunals.  There  are  certain  injuries  of  such  a 
nature  that  some  of  them  furnish,  and  others  require,  a  more 
summary  remedy  than  can  be  obtained  in  the  ordinary  forms  of 
civil  procedure.  There  is  allowed  in  those  cases  an  extrajudi- 
cial or  eccentric  kind  of  remedy.  Thus  the  law  justifies  acts 
done  by  a  party  in  self  defense,  or  in  defense  of  a  parent  or  child, 
or  in  defense  of  husband  or  wife.  There  are,  however,  but 
few  remedies  that  the  law  intrusts  to  the  party  injured  for  re- 
dress, for  it  wisely  takes  into  account  human  frailty  and  the 
danger  of  the  party  going  to  such  an  extreme,  prompted  either 
by  prejudice  or  passion,  as  to  perpetrate  a  manifest  injury  or 
wrong  under  the  guise  of  redress.  The  other  method  of  redress, 
which  is  much  oftener  resorted  to,  and  the  questions  arising  out 
of  which  are  far  more  complex  and  diflicult,  we  propose  in  the 
following  pages  to  consider  at  length,  so  far  as  the  same  falls 
within  the  purview  of  this  treatise. 

'  1  Blacktitone'>s  Com.  61. 


THE  ORIGIN  OF  RELIGIOUS  ORGANIZATIONS.  17 


CHAPTER  V. 

THE    ORIGIN    OF   RELIGIOUS  ORGANIZATIONS. 

Religious  organization  is  traceable  back  to  a  very  early 
period.  If  it  does  not  antedate  the  formation  of  civil  govern- 
ment, it  is  at  least  coeval  with  it.  The  true  foundation  of  re- 
ligious organization  may  be  justly  referred  to  the  wants  and 
desires  of  individuals  for  a  closer  and  more  intimate  relation 
with  the  Deity.  We  are  not  of  those  who  believe  that  there 
ever  was  a  time  after  man  had  multiplied  on  the  earth,  when 
there  was  no  such  thing  as  religious,  social,  or  civil  government ; 
or  that  men,  through  a  sense  of  their  w^ants  and  weaknesses  as 
individuals,  met  on  a  large  plane  and  entered  into  an  original 
contract  of  organization. 

This  notion  of  an  actually  existing  state  of  nature  is  too  wild 
to  be  seriously  considered ;  besides,  it  is  plainly  contradictory  to 
the  revealed  account  of  the  primitive  origin  of  government 
among  mankind.  The  more  satisfactory  inference  is,  that  so- 
cieties, religious  and  civil,  were  effected  by  means  of  the  family 
relation,  that  relation  being  ordained  of  God.  It  is  evident  that 
families  formed  the  first  natural  societies  among  themselves, 
which,  by  extending  their  limits  into  the  patriarchal  relation  laid 
the  first,  though  imperfect,  rudiments  of  society.  It  is  evident 
that  societies  were  incapable  of  existing  without  rules  and  regu- 
lations for  the  government  thereof;  and  in  order  to  the  establish- 
ment of  rules  and  regulations,  it  was  and  is  necessary  that  there 
should  be  those  who  were  clothed  with  authority.  It  is  probable 
that  the  rules  and  regulations,  as  they  iirst  existed,  were  the  re- 
sults of  usage,  as  it  must  be  now  in  all  young  societies,  before  a 
central  authority  is  firmly  established  and  recognized. 

When  a  society  is  first  formed  its  rules  and  regulations  are 
ordinarily  few  and  simple;  but  as  it  increases  in  numbers  and 
wealth,  and  engages  in  new  enterprises,  such  rules  and  regulations 
become  more  and  more  numerous  and  complex  ;  and  as  usage  is  of 
slow  growth,  it  often  becomes  necessary  to  resort  to  positive  enact- 
ments in  order  to  meet  the  growing  necessities  consequent  upon 
religious  enlightenment  and  intellectual  and  moral  development. 


18  ECCLESIASTICAL  LAW. 

No  Church  can  long  exist,  much  less  prosper,  when  it  is 
behind  public  opinion,  or  when  it  is  subservient  thereto.  The 
Church  should  therefore  aim  to  lead  and  control  public  opinion 
rather  than  to  be  led  and  controlled  by  it;  and  in  order  to  do 
this,  it  is  necessary,  in  every  Church  organization,  that  there 
should  exist  a  governmental  power  competent  to  make  new  rules 
and  regulations  so  as  to  change  the  usages  of  the  Church  as 
often  as  the  exigencies  of  the  organization  require  it,  subject, 
however,  to  this  important  qualification :  that  no  change  should 
ever  be  made  that  would  tend  to  destroy  its  fundamental  object. 

In  order  to  the  existence  of  government,  whether  of  the 
Church  or  of  the  State,  it  is  necessary  that  there  should  be  a 
central  power,  clothed  with  authority  not  only  to  make  rules  and 
regulations  for  the  government  of  such  Church  or  State,  but  with 
authority  to  enforce  obedience,  or  tiie  observance  of  those  rules, 
by  the  infliction  of  punishment,  the  object  of  punishment  by 
human  authority  being  twofold — first,  to  reform  the  ofi'ender ; 
second,  to  deter  others  from  the  commission  of  crime,  thereby 
protecting  the  Church  or  State  from  injury.  Some  writers,  how- 
ever, have  doubted  the  propriety  of  this  definition  of  punish- 
ment, claiming  that  the  government  has  no  right  to  impose 
suffering  upon  one  of  its  subjects  for  the  benefit  of  itself  or  for 
the  benefit  of  others.  The  objection  is  undoubtedly  founded 
upon  correct  principle,  subject  to  this  qualification:  that  no  man 
should  be  punished  unless  he  deserves  punishment  as  a  matter 
of  pure  justice,  aside  from  all  extraneous  considerations.  Mr. 
Eden,  in  his  work  on  penal  laws, ^  says  :  "Punishments  are  to  be 
considered  as  founded  upon,  and  limited  by,  first,  natural  justice; 
second,  public  utility."  It  is  evident  that  crime,  whether  against 
the  natural,  revealed,  or  municipal  law,  must  proceed  from  a 
criminal  mind,  and  the  motive  or  intent  must,  of  necessity,  be 
regarded  as  constituting  a  controlling  element  in  it.  Probably 
in  no  one  thing  does  criminal  jurisprudence  differ  from  civil 
more  than  in  the  doctrine  of  intent.  The  criminal  laAV  aims  at 
punishment;  the  civil  law,  at  compensation. 

A  man  is  frequently  held  to  the  consequences  of  his  act  civilly, 
though  he  neither  intended  it  nor  suffered  himself  to  be  influ- 

^  Eden  on  Penal  Laws,  3d  Ed.  C, 


THE  ORIGIN  OF  RELIGIOUS  ORGANIZATIONS.  19 

enced  by  an  evil  mind.  Thus,  when  one  has  done  any  thing  that 
inflicts  an  injury  upon  another,  it  is  but  simple  justice  that  he  who 
inflicts  the  injury  should  be  made  to  bear  the  loss,  so  far  as  actual 
compensation  is  concerned,  rather  than  the  other  who  has  suf- 
fered the  injury. 

There  is,  however,  a  large  class  of  civil  cases  cognizable  in 
our  common  law  courts,  where  the  intent  or  motive  enters  as  an 
element  in  estimating  the  damages  ;  not  to  the  extent,  however, 
of  restricting  the  party  injured  to  less  than  the  actual  damages.' 

Thus,  in  all  actions  of  tort  or  wrong  it  is  proper  to  sbow  to  the 
jury  the  quo  animo  or  mind  with  Avhich  a  thing  was  done;  and 
in  some  actions,  as  in  slander,  libel,  and  the  like,  the  intent  con- 
stitutes the  gravamen  of  the  charge;  and  where  tiiere  was  no 
wrongful  intention  in  speaking  the  words  or  publishing  the  libel, 
the  party  is  not  liable.^ 

The  same  rule  will  hold  good  when  applied  to  all  penal, 
statutory,  and  police  offenses,  arising  under  the  ordinances  of 
towns  and  cities;  and  it  is  in  analogy  with  this  latter  principle 
that  the  intent  or  motive  with  which  a  member  of  the  Church 
violates  any  of  the  provisions  of  the  Discipline  enters  as  an  ele- 
ment of  inquiry  into  the  investigation. 


^  Where  a  question  of  fraud,  malice,  gross  negligence  intervenes,  and  where 
either  of  these  elements  mingle  in  the  controversy,  the  law,  instead  of  adhering 
to  the  system  or  even  the  language  of  compensation,  adopts  a  wholly  different 
rule.  It  permits  the  jury  to  give  wbat  is  termed  punitive,  vindictive,  or  exem- 
plary damages ;  in  other  words,  blends  together  the  interests  of  society  and  of 
the  aggrieved  individual,  and  gives  damages  not  only  to  recompense  the  sufferer, 
but  to  punish  the  offender.     Sedgwick  on  Damages,  3d  ed.,  ?>G. 

^  Now  the  law  is  (says  Mr.  Justice  Parker),  that  accusations  made  to  a  body 
competent  to  try  the  offense  can  not  be  made  the  subjecfof  an  action  of  slander. 
All  proceedings  in  courts  of  justice  come  within  this  rule;  so  that  if  the  party 
accusing  honestly  intended  to  prefer  a  complaint,  and  not  to  abuse  this  privilege 
for  the  purpose  of  slandering  his  adversary,  although  the  matter  contained  in  the 
complaint  would  be  otherwise  libelous  and  should  be  untrue,  it  can  not  be  the 
foundation  of  an  action  of  this  nature.  The  proper  remedy  in  such  cases  is  by 
action  for  malicious  prosecution  ;  and  then,  if  there  be  no  probable  cause,  and  the 
accuser  was  influenced  by  bialicious  designs,  the  party  injured  will  obtain  satis- 
faction. 2  Phillips  on  Evd.  109;  Remington  v.  Cangdon,  2  Pick.  313;  Jarvis  v. 
Hathaway^  3  John.  R.  180. 


20  ECCLESIASTICAL  LAW. 

CHAPTER  VI. 

THE  EELATION  OF  THE  INTENT  TO  THE  ACT. 

In  our  civil  tribunals^  notice  is  only  taken  of  wi'ong  when 
the  complaining  party  is  legally  entitled  to  complain ;  and  he  is 
only  so  entitled  Avhen,  besides  having  an  interest  in  the  matter, 
he  has  also  sustained  an  injury.  The  government  that  com- 
plains in  criminal  cases  does  not  suffer  from  the  intent  or  imagi- 
nation of  mind  until  that  imagination  has  been  coupled  with  a 
criminal  act.  Hence  the  rule  that  there  must  be  a  connection 
between  the  intent,  motive,  or  purpose  and  the  act,  in  order  to 
constitute  a  crime.  With  the  Church  the  rule  aimed  at  is  dif- 
ferent, yet  even  there  it  is  impracticable  to  establish  any  other 
rule,  or  a  different  rule,  except  to  this  extent,  that  a  more 
searching  inquiry  may  be  instituted  in  order  to  ascertain  the  true 
intent  of  the  mind.  It  is  true  that  in  adultery  Christ  held  that 
the  mere  desire  was  evil,  so  that  ''he  that  looketh  upon  a  woman 
to  lust  after  her  hath  committed  adultery."  In  Christian  ethics  the 
mere  designing  or  entertaining  an  evil  in  the  mind  is  equivalent  to 
the  commission  of  the  act,  and  is  properly  considered  as  a  crime 
against  God,  although  the  injury  is  not  done  to  the  person  or  prop- 
erty of  another.  It  would  be  very  difficult,  if  not  wholly  impracti- 
cable, under  most  circumstances  to  substantiate  such  a  charge. 
The  entertaining  of  an  evil  purpose  in  the  mind  of  one  person, 

^  Who  are  "civil  officers"  within  the  meaning  of  this  constitutional  provision 
is  an  inquiry  which  naturally  presents  itself,  and  the  answer  can  not,  perhaps, 
be  deemed  settled  by  any  solemn  adjudication.  The  term  "civil"'  has  various 
significations.  It  is  sometimes  used  in  contradistinction  from  barbarous,  or 
savage,  to  indicate  a  state  of  society  reduced  to  order  and  regular  government. 
Thus  we  speak  of  civil  life,  civil  society,  civil  government,  and  civil  liberty,  in 
which  it  is  nearly  equivalent  in  meaning  to  political.  It  is  sometimes  used  in 
contradistinction  to  criminal,  to  indicate  the  ])rivate  rights  and  remedies  of  men 
us  members  of  the  community  in  contrast  to  those  which  are  public  and  relate 
to  the  government.  Thus  we  speak  of  civil  process  and  criminal  process,  civil 
jurisdiction  and  criminal  jurisdiction.  It  is  sometimes  used  in  contradistinction 
to  military  or  ecclesiastical,  to  natural  or  foreign.  Tlius  we  speak  of  a  civil 
station  as  oppo.sed  to  a  military  or  ecclesiastical  station ;  a  civil  death  as 
opposed  to  a  natural  death  ;  a  civil  war  as  opposed  to  a  foreign  war.  1  Story 
on  the  Constitution,  71)1. 


RELATION  OF  THE  CHURCH  TO  CIVH.  GOVERNMENT.        21 


however  wicked  it  may  be,  is  incomprehensible  to  the  mind  of 
another,  except  in  those  cases  where  expression  has  been  given 
to  it  either  by  word  or  deed;  and  until  then  no  injury  has  been 
sustained  by  the  individual,  Church,  or  community,  which  is 
cognizable  either  by  the  civil  or  criminal  law,  or  by  the  canons 
of  the  Church. 

We  are  led  to  inquire  whether  a  particular  act  prohibited  by 
our  civil  and  criminal  law  is,  by  reason  of  such  prohibition,  a 
proper  subject  of  inquiry  by  the  tribunals  of  the  Church.^ 

Civil  tribunals  do  not  look  merely  at  the  morality  of  the  act, 
or  even  at  the  enormity  of  the  evil  sought  to  be  remedied,  but  at 
most  only  primarily  at  the  question  as  one  of  governmental 
judgment,  taking  into  consideration  the  punishment  of  the  evil- 
doer according  to  legislative  and  judicial  rules,  and  for  the 
promotion  of  public  peace  and  good  order.  "While  these  facts 
are  to  be  considered  in  Church  investigations,  ecclesiastical  tri- 
bunals, in  supplying  the  deficiency  of  the  civil  government  by 
elevating  the  standard  of  morality,  must  deal  more  directly  with 
the  conscience,  and  give  greater  heed  to  the  moral  and  spiritual 
state  of  her  members;  therefore,  she  takes  notice  of  offenses 
against  the  law  of  the  Church  that  are  not  regarded  as  offenses 
against  the  law  of  the  State  or  civil  government. 


CHAPTER  VII. 

THE  RELATION  OF  THE  CHURCH  TO  THE  CIVIL  GOVERNMENT. 

The  government  of  the  States  and  the  government  of  the 
Church,  although  professing  to  be  separate  and  distinct  and  to 
exist  independent  the  one  of  the  other,  are,  nevertheless,  curi- 
ously and  necessarily  interwoven,  and  the  one  can  not  long  exist 

*  It  is  manifest  from  the  case  that  the  words  uttered  were  uttered  in  the 
course  of  Church  discipline  by  the  defendant  to  the  plaintiff,  who  were  both 
Church  members ;  and  whether  such  discipline  was  proper  or  not  is  not  a  point 
for  us  to  determine.  Every  sect  of  Christians  are  at  liberty  to  adopt  such  pro- 
ceeding for  their  regulations  as  they  see  fit,  not  inconsistent  with  law  or  injurious 
to  the  rights  of  others.  In  actions  of  slander  it  is  of  the  essence  of  the  action 
that  the  words  be  spoken  maliciously,  and  that,  as  a  matter  of  fact,  belongs  to 
the  jury  to  determine.     Jaivis  v.  Hathaioay,  3  John.  18L 

3 


22  ECCLESIASTICAL  LAW. 

without  the  other.  The  government  recognizes  and  clothes  the 
Church  with  certain  powers  and  authority,  and  while  every  State 
in  the  Union,  by  its  constitution  or  organic  law,  prohibits  the 
recognition  of  established  Churches,  and  leaves  every  man  free  to 
worship  Almighty  God  according  to  the  dictates  of  his  own  con- 
science, yet  they,  by  legislation,  recognize  the  voluntary  associa- 
tion of  persons  for  religious  purposes  in  a  way  that  they  recognize 
voluntary  associations  for  no  other  purposes  ;  and  they  also  clothe 
such  voluntary  societies  with  certain  rights  and  privileges.  In 
many  of  the  States  the  law  authorizes  the  formation  of  religious 
societies  into  quasi  corporations,  and  clothes  them  with  the  power 
of  suing  and  being  sued  in  the  civil  courts,  and.  of  acquiring, 
taking,  and  holding  title  to  real  and  personal  property  such  as  is 
necessary  for  the  use  of  such  society.  Tiiey  also  guarantee  to  such 
societies  immunity  against  disturbance  while  engaged  in  religious 
worship.  While  the  government  extends  its  protecting  care  to 
the  Church,  she,  in  turn,  gives  to  the  government  a  test,  or 
obligation,  with  which  to  bind  the  consciences  of  all  those  who 
hold  official  relations  to  the  State  or  government,  of  those  who 
sit  upon  juries,  and  of  those  who  give  their  evidence  in  courts 
of  justice  or  elsewhere. 

Formerly  it  was  held  with  a  great  degree  of  strictness,  that 
where  a  person's  conscience  would  not  be  affected  by  the  religious 
sanction  of  an  oath,  that  he  was  incapable  of  sitting  upon  a  jury 
or  of  giving  his  testimony  in  a  court  of  justice. 

The  combination  tends  to  produce  progress  and  improvement, 
so  that  of  the  various  systems  of  rules  for  the  government  and 
control  of  man,  none  assert  their  claims  with  higher  sanction 
than  the  rules  of  the  Church,  founded,  as  they  undoubtedly  are, 
upon  the  Word  of  God  and  the  express  assent  of  its  members. 
The  obligation  of  membership,  unlike  allegiance  to  the  civil  gov- 
ernment, is  a  voluntary  one.  The  continuance  of  Church  rela- 
tionship is  also  voluntary  in  this  country ;  however,  it  was 
different  in  England  in  the  Established  Church.  Any  member 
of  a  religious  society  has  a  right  to  Avithdraw  and  sever  his  con- 
nection with  such  society,  subject,  however,  to  certain  limita- 
tions, which  will  hereafter  be  pointed  out. 

To  show  the  intimate  relation  still  further  between  the  Church 
and  the  government,  it  will  be  necessary  to  refer  to  the  origin 


RELATION  OF  THE  CHURCH  TO  CIVIL  GOVERNMENT.        23 

of  the  Methodist  Church.  It  was  first  organized  in  England, 
under  the  auspices  of  Jolm  Wesley,  as  simple  societies,  with 
acknowledged  subordination  to  the  Church  of  England,  which 
Church,  by  a  series  of  parliamentary  enactments,  was,  although 
unincorporated,  made  the  legally  recognized  Church,  and  placed 
under  the  fostering  care  of  the  government,  with  the  king  as  its 
recognized  head  and  supreme  governor;  and  from  the  king 
being  the  head  of  the  Church  arose  his  right  of  nomination  to 
vacant  bishoprics  and  certain  other  ecclesiastical  preferments. 
As  the  head  of  the  Church,  the  king  was  likewise  the  dernier 
resort  in  all  ecclesiastical  courts,  an  appeal  lying  ultimately  to 
him  in  Chancery.  Thus  all  ecclesiastical  matters  were  subor- 
dinate to  the  civil  government  in  one  form  or  another.  It  was 
under  and  during  the  existence  of  this  relationship  between  the 
Church  and  the  State  that  the  Methodist  Church,  as  voluntary 
societies,  was  formed.  Afterward  those  societies  separated  from 
the  Church  of  England  and  formed  themselves  into  a  separate 
organization,^  first  in  England  and  then  in  this  country.  Such 
was  its  relation  until  the  close  of  the  Revolution  which  separated 
the  Colonies  from  the  parent  State.  The  separation  of  the  two 
countries  sundered  the  relationship  of  the  Church,  so  intimately 

^  The  history  of  Methodism  was  for  many  years  the  history  of  Christian 
effort  to  evangelize  the  neglected  masses  of  England.  The  labors  of  Wesley  and 
of  those  whom  he  inspired  to  imitate  his  example  were  of  the  noblest  descrip- 
tion, and  met  with  remarkable  success.  The  zeal  which  has  inspired  the  body 
in  regard  to  foreign  missions,  although  in  the  highest  degree  honorable,  is  only 
the  logical  development  of  their  efforts  at  liome,  for  they  originally  regarded 
their  society  in  England  as  simply  a  vast  home  mission,  and  neither  Wesley  nor 
his  followers  desired  to  consider  themselves  as  a  sect — a  new  Church — in  the 
common  usage  of  the  term,  but  were  warmly  attached  to  the  old  national 
Church,  and  considered  themselves  among  her  true  children. 

When  Wesley  died  (in  1791),  his  societies  had  spread  over  the  United  King- 
dom, the  Continent  of  Europe,  the  States  of  America,  and  the  West  Indies,  and 
numbered  80,000  members.  Since  then  they  have  largely  increased,  and,  ac- 
cording to  the  latest  official  returns,  the  member-ship  (including  the  number  in 
foreign  missions  embracing  Continental  India,  Northern  Europe,  China,  Asia 
Minor,  the  South  Sea  and  the  West  India  Islands)  amounts  to  ,3,(5(')j..^80  (of 
whom  733,089  belong  to  Great  Britain,  20,795  to  Ireland),  and  the  number  of 
ministers  to  20,817.  The  annual  appropriation  of  the  Missionary  Society  of  the 
Methodist  Episcopal  Church  in  1870  amounted  to  $671,180.  It  has  more  than 
598  missionaries,  and  39,088  members,  and  7,914  probationers.  Chambers's 
Encyclopedia,  Vol  4,  page  425. 


24  ECCLESIASTICAL  LAW. 

was  the  one  interwoven  with  the  other.  Tliis  separation  left  the 
Church  in  America  entirely  distinct  from  the  civil  government — 
a  mere  vokmtary  association  of  members,  kept  together  by  their 
religious  zeal;  and  in  this  condition  it  grew  and  prospered  from 
small  societies  until  its  moral  power  is  now  both  recognized  and 
espected. 

CHAPTER  VIII. 

THE  RELATION  OF  THE  CHURCH  TO  THE  CIVIL  COURTS. 

Can  the  civil  courts  limit,  restrain,  or  control  the  action  of 
Church  tribunals  ?  and  if  so,  to  what  extent  1  and  what  is  the 
true  boundary  that  separates  the  one  from  the  other?  The 
Church  in  this  country,  as  we  previously  said,  is  formed  in  a 
mutual  covenant  of  relationship  voluntarily  assumed  by  its  mem- 
bers and  limited  to  the  authority  of  the  Church  over  actual 
members;  hence  it  follows  as  a  necessary  corollary,  that  the 
authority  of  the  Church  is  founded  upon  canons  to  which  the  mem- 
bers subscribe,  either  directly  or  tacitly  in  becoming  members  of 
the  Church ;  and,  therefore,  they  have  the  right  to  be  tried  by  the 
canons  of  the  Church.  And  the  Church,  wlien  proceeding  in  ac- 
cordance with  its  established  rules  and  usages,  has  exclusive  juris- 
diction, and  its  action  is  not  liable  to  be  inquired  into  elsewhere. 

It  may  be,  however,  that  if  the  Church  were  to  attempt,  in 
exercising  jurisdiction  over  its  membership,  to  exercise  an 
usurped  jurisdiction  not  within  the  constitution  and  canons  of 
the  Church,  that  a  court  of  equity,  upon  a  proper  case  made  by 
a  bill  in  Chancery,  might  be  induced  to  interfere  by  injunction. 
But  the  exercise  of  such  an  authority  by  a  court  of  equity  is  not 
favored,  and  is  very  carefully  limited  and  restricted  to  cases 
where  there  is  an  entire  want  of  authority,  by  the  rules  of  the 
Church,  to  exercise  the  jurisdiction;  for  where  the  right  exists 
in  the  Church,  the  civil  courts  have  no  authority  to  direct  or 
control,  be  tiie  proceedings  ever  so  erroneous.^ 

^  In  the  case  of  Chase  et  al  v.  Cheney^  58  Ills.  5.S.'?,  the  Court  says:  ''The 
minister,  in  a  legal  point  of  view,  is  a  voluntary  member  of  the  association  to 
which  he  belongs.  The  position  is  not  forced  upon  him ;  he  seeks  it.  He  ac- 
cepts it,  with  all  its  burdens  and  consequences ;  with  all  the  rules  and  laws  and 


RELATION  OF  THE  CHURCH  TO  THE  CIVIL  COURTS.  25 

The  true  boundary  between  the  Church  and  the  civil  govern- 
ment should  be  carefully  maintained,  so  that  each  should  revolve 
in  its  own  orbit. 

The  Constitutions  of  nearly  all  the  States  of  the  Union  pro- 
vide for  the  free  exercise  and  enjoyment  of  religious  profession, 
without  discrimination.  Tiiis  guaranty  excludes  the  idea  of  all 
interference  with  religious  faith  and  membership  in  the  Church 
by  the  civil  courts.  Freedom  of  religious  profession  can  not  be 
maintained  if  the   civil  tribunals  of  the  land  trench  upon  the 

canons  then  existing  or  to  be  made  by  competent  authority,  and  can,  at  pleasure 
and  with  impunit)',  abandon  it.  If  they  were  merciful  and  regardful  of  con- 
scientious scruples,  he  knew  it;  if  they  were  arbitrary,  illiberal,  and  attempted 
to  chain  the  thoughts  and  consciences,  he  knew  it.  They  can  not,  in  any  event, 
endanger  his  life  or  liberty,  impair  any  of  his  personal  i-ights,  deprive  him  of 
property  acquired  under  the  laws,  or  interfere  with  the  free  exercise  and  enjoy- 
ment of  religious  profession  and  worship,  for  these  are  protected  by  the  Consti- 
tution and  laws.  While  a  member  of  the  association,  however,  and  having  an 
interest  in  all  the  benefits  resulting  therefrom,  he  should  adhere  to  its  discipline, 
conform  to  its  doctrines  and  mode  of  worship,  and  obey  its  laws  and  canons. 
If  reason  and  conscience  will  not  permit,  the  connection  should  be  severed. 
'The  only  remedy  which  a  member  of  a  voluntary  association  has  when  he  is 
dissatisfied  with  the  proceedings  of  the  body  with  which  he  is  connected,  is  to 
withdraw  from  it' 

''  If  we  compel  this  spiritual  court  to  observe  the  rule  of  law  as  to  chal- 
lenge of  jurors,  it  would  be  our  duty  to  enforce  the  observance  of  all  the  rules 
of  law,  unless  of  impossible  application.  With  the  same  propriety  it  might  be 
urged  that  twelve  presbyters — the  number  of  a  jury — instead  of  three  or  five, 
should  form  the  court.  Why  not  go  beyond  the  pale  of  the  Church  and  aban- 
don the  presbyters  as  wholly  incompetent?  The  canon,  in  the  designation  of 
presbyters  as  assessors,  and  the  number,  is  no  more  emphatic  than  in  providing 
the  manner  of  selection.  What  law  shall  govern  as  to  the  number  of  witnes,=eR 
necessary  to  establish  an  ofi'ense?  Our  law  only  requires  one  witness,  with  two 
exceptions;  the  Scriptural  rule  requires  two.  The  injunction  of  St.  Paul  is, 
'Against  an  elder  receive  not  an  accusation  but  before  two  or  three  witnesses.' 
The  law  under  the  old  dispensation  was,  'One  witness  shall  not  rise  up  against 
a  man  for  any  iniquity,  or  for  any  sin;  at  the  mouth  of  two  witnesses,  or  at  the 
mouth  of  three  witnesses,  shall  the  matter  be  established.' 

"  We  have  no  right,  and  therefore  will  not  exercise  the  power,  to  dictate 
ecclesiastical  law.  We  do  not  aspire  to  become  de  facto  heads  of  the  Church, 
and  by  construction  or  otherwise  abrogate  its  canons  and  laws.  We  shall  not 
inquire  whether  the  alleged  omission  is  any  offense.  This  is  a  question  of  ec- 
clesiastical cognizance.  This  is  no  forum  for  such  adjudication.  The  Church 
should  guard  its  own  fold,  enact  and  construe  its  own  laws,  enforce  its  own  dis- 
cipline, and  thus  will  be  maintained  the  boundary  between  the  temporal  and 
spiritual  power." 


26  ECCLESIASTICAL  LAW. 


domain  of  the  Church,  construe   its   canons  and   rules,  dictate 
its  discipline,  and  regulate  its  trials. 

A  discipline  is  necessary  to  the  very  existence  of  Church 
organization.  The  Church  has  the  right,  therefore,  to  make, 
enforce,  and  construe  its  own  discipline.  It  is  as  much  a  delu- 
sion to  confer  religious  liberty,  without  the  right  to  make  and 
(enforce  rules  and  regulations,  as  it  is  to  establish  and  maintain  a 
government  with  no  power  to  punish  offenders.  The  constitu- 
tions of  the  States  guarantee  the  fi-ee  exercise  and  enjoyment 
of  religious  ffiith,  subject  only  to  this  restriction,  as  it  is  ex- 
pressed in  the  Constitution  of  the  State  of  Illinois,  ^'  that  lib- 
erty shall  not  be  construed  into  licentiousness,  so  as  to  authorize 
practices  inconsistent  with  the  peace  and  safety  of  the  State." 
The  boundary  between  the  Church  and  State  should  be  clearly 
marked  out,  and  carefully  observed,  and  maintained.  It  is  well 
settled,  that  the  civil  courts  may,  and  will,  interfere  where  the 
rights  of  property  or  other  civil  rights  are  invaded ;  but  it  is 
equally  well  settled  that  the  civil  courts  will  not  interfere  to 
revise  the  decision  of  an  ecclesiastical  court  upon  ecclesiastical 
matters.  In  the  case  of  the  Baptist  Church  v.  Witherell,  ^  Chan- 
cellor Walworth  said,  ''  Tliat  over  the  Church,  as  such,  the  legal 
or  temporal  tribunals  do  not  profess  to  have  any  jurisdiction 
whatever,  except  so  far  as  it  is  necessary  to  protect  it,  or  where 
it  is  necessary  to  protect  the  civil  rights  of  others,  and  to  pre- 
serve the  public  peace.  All  questions  relating  to  the  faith  and 
practice  of  the  Church  and  its  members  belong  to  the  Church 
judiciary,  to  which  they  have  voluntarily  subjected  themselves. 
But,  as  a  general  principle,  those  ecclesiastical  judicatories  can 
not  interfere  with  the  temporal  concerns  of  the  congregation  or 
society  with  which  the  Church,  or  its  members  thereof,  are  con- 
nected.'' Christianity,  though  an  essential  element  of  conserva- 
tion, and  a  great  moral  power  in  the  State,  should  only  work  by 
love,  and  inscribe  the  law  of  liberty  upon  the  heart.  The  civil 
government  lias  no  just  or  lawful  authority  over  the  conscience, 
or  faith,  or  form  of  worship,  or  Church  creed,  or  discipline,  as 
long  as  their  fruits  neither  undermine  the  civil  supremacy, 
demoralize  society,  nor  disturb  its  peace  and  security.  The  mem- 
bers of  a  Church  unite  with  it  with  a  full  knowledge  of  its  defined 


Page  296. 


RELATION  OF  THE  CHURCH  TO  THE  CIVIL  COURTS.         27 

powers ;  and  as  the  civil  power  can  not  interfere  in  matters  of 
conscience,  faith,  or  discipline,  they  must  submit,  however 
unjustly,  to  be  canonically  dealt  with  by  their  own  adopted 
spiritual  rulers.* 


CHAPTER  IX. 

OFFENSES   AGAINST   THE    CIVIL   GOVERNMENT. 

In  another  place  we  will  treat  of  the  obligation  of  a  Church 
member  to  obey  the  civil  law ;  but  at  present  we  shall  confine  the 
inquiry  to  offenses  against  the  civil  government,  and  how  far 
they  are  cognizable  before  a  Church  tribunal.  All  offenses  are 
reducible  under  one  of  two  general  heads.  First,  such  as  are 
malum  in  se.  Second,  such  as  are  malum  in ohib Hum.  The  first 
involves  moral  as  well  as  legal  guilt ;  that  is,  the  act  is  wrong  per 
se ;  not  because  it  is  prohibited  by  iiuman  authority,  but  because 
it  is  in  violation  of  the  natural  or  the  revealed  law  of  God.  Hu- 
man or  civil  government  may  prohibit  the  act,  and  declare  what 
punishment  shall  be  inflicted  upon  the  offender,  but  the  prohibi- 
tion adds  nothing  to  the  moral  guilt. 

In  tliis  connection,  we  will  allude  to  a  question  that  has  been 
variously  considered,  and  has  frequently  agitated  the  public 
mind;  that  is,  where  the  divine  and  human  law  come  in  conflict, 
which  should  be  obeyed  ?  Without  hesitation  we  answer,  that 
the  divine  or  natural  law  should  ;  and  in  this  view  we  are  sup- 
ported by  the  great  weight  of  Sir  James  Mackintosh,  who  says : 
'^  We  are  bound  to  disobey  every  human  law  which  allows  or 
enjoins  us  to  commit  a  breach  of  tlie  law  of  nature.  A  law 
contrary  thereto  would  promote,  and,  if  obeyed,  would  ever  pro- 
mote, the  misery  of  man  so  long  as  he  remains  a  being  of  the 
same  nature  with  which  he  is  at  present  endowed." 

"The  municipal  law  of  a  country  is  only  made,"  says  Stan- 
hope, "for  the  common  course  of  things,  and  can  never  be  under- 
stood to  have  been  designated  to  defeat  the  ends  of  all  law. 
What  Avould  be  the  consequence  of  a  nation  submitting  to  a 
violation  of  all  their  natural  and  divine  rights!  The  result 
would  prove  most  disastrous." 

1  The  German  Reformed  Church  v.  Sibert,  3  Barr,  291. 


28  ECCLESIASTICAL  LAW. 

The  language  of  the  members  of  the  House  of  Commons,  in 
the  celebrated  Sacheverell  case,  is  still  stronger  on  this  point ;  if 
the  transgression  of  any  given  law  against  common  right  and  the 
ends  of  just  government  be  considerable  in  their  nature,  and 
spreading  in  their  effects,  as  this  objection  goes  to  the  root  and 
the  principle  of  the  law,  it  renders  it  void  in  its  obligatory  quali- 
ties upon  the  mind.  It  can  not  be  said,  therefore,  to  have  the 
property  of  genuine  law,  even  in  its  imperfections  and  defects. 
Such  a  law,  though  made  not  virtually,  but  actually,  by  the  peo- 
ple, not  representatively  but  collectively,  would  be  null  and  void ; 
because  it  would  be  against  the  principles  of  a  superior  law, 
which  it  is  not  in  the  power  of  any  community  or  the  whole  race 
of  man  to  alter.  ^ 

In  the  debate  on  the  Church  Discipline  Bill,  in  the  House 
of  Lords,  July  26,  1833,  the  Bishop  of  Exeter  said:  "I  speak 
solemnly,  but  I  speak  not  in  a  spirit  of  defiance,  when  I  say, 
that  should  this  Bill  pass,  I  shall  not  feel  myself  at  liberty  to 
obey  its  main  instructions  or  directions.  To  other  laws  I  will 
cheerfully  conform,  but  this  will  be  a  law  that  strikes  at  the 
very  root  of  the  essential  discipline  of  our  Christian  Church.  I 
plainly  and  openly  declare,  that  should  this  Bill  pass,  if  a  cler- 
gyman in  any  diocese  conducts  himself  criminally,  I  shall  call 
on  that  clergyman  to  answer  me  for  his  action  ;  and,  if  he  will 
not  obey  my  remonstrances,  I  shall  proceed  to  that  sentence 
which  this  Bill  tells  me  I  shall  not  pass;  I  shall  proceed  to 
excommunicate  him." 

Mr.  Justice  Coleridge  understands  Blackstone  to  mean  merely 
'^  That  a  human  law  against  the  law  of  nature  has  no  binding 
force  against  the  conscience ;  and  that  if  a  man  submits  to  the 
penalty  of  disobedience  he  stands  acquitted."  That,  however, 
is  not  the  construction  that  we  put  upon  the  language  of  this 
celebrated  law  writer:  for,  says  he,  "In  regard  to  such  points  as 
are  not  indifferent,  human  laws  are  only  declaratory  of  an  act  in 
subordination  to  the  former :  to  instance,  in  the  case  of  murder, 
this  is  expressly  forbidden  by  the  divine  and  demonstrably  by  the 
natural  law ;  and  from  these  prohibitions  arises  the  true  unlawful- 
ness of  the  crime.  Those  human  laws  that  annex  a  penalty  or 
punishment  to   them  do  not  at  all  increase  the  moral  guilt,  or 

'  See  Burke's  Tract  on  Property  Law. 


OFFENSES  AGAINST  THE  CIVIL  GOVERNMENT.  29 

superadd  any  fresh  obligation  in  foro  conscicntice  to  abstain 
from  its  perpetration.  Nay,  if  any  human  law  should  allow,  or 
enjoin  us  to  commit  it,  we  are  bound  to  transgress  that  human 
law,  else  we  must  offend  both  the  natural  and  the  divine  law.''^ 

The  more  difficult  question  is,  Where  there  is  a  plain  and 
manifest  repugnance  between  human  and  divine  law,  how  shall 
the  human  law  be  administered  ?  should  our  courts  treat  it 
as  they  would  a  law  infringing  the  Constitution  of  a  State  or 
general  government  ?  or  should  they,  notwithstanding  the  infringe- 
ment, proceed  to  its  enforcement,  and  thereby,  for  all  practical 
purposes,  treat  the  law  as  one  of  binding  obligation  upon  the 
court,  although  it  is  admitted  that  it  is  the  duty  of  the  subject 
not  to  obey? 

This  question  is  very  ably  considered  by  Chase,  J.,  in  deliv- 
ering the  opinion  of  the  Supreme  Court  of  the  United  States,  in 
the  case  of  Colder  v.  BuU,^  where  he  said :  ''I  can  not  subscribe 
to  the  omnipotence  of  the  State  Legislature,  or  that  it  is  absolute 
and  without  control,  although  its  authority  should  not  be  ex- 
pressly restrained  by  the  Constitution  or  fundamental  law  of  the 
State.  There  are  certain  vital  principles  in  our  free.  Republican 
government  which  will  determine  and  overrule  any  apparent  and 
flagrant  abuse  of  legislative  power,  as  to  authorize  manifest 
injustice  by  positive  law,  or  to  take  away  that  security  for  per- 
sonal liberty  or  private  property,  for  the  protection  whereof  the 
government  was  established.  An  Act  of  the  Legislature  ( for  I 
can  not  call  it  a  law)  contrary  to  the  first  great  principles  of  the 
social  compact  can  not  be  considered  a  rightful  exercise  of  power." 

Mr.  Justice  Story,  with  his  great  ability  and  his  vast  legal 
research,  in  speaking  upon  this  subject  held  this  language : 
"The  fundamental  maxims  of  a  free  government  seem  to  require 
that  the  rights  of  personal  liberty  and  private  property  should 
be  held  sacred;  at  least  no  court  of  justice  in  this  country  would 
be  warranted  in  assuming  that  the  power  to  violate  and  disregard 
them, —  a  power  so  repugnant  to  the  common  principles  of  justice 
and  civil  liberty, —  lurked  under  any  general  grant  of  legislative 
authority,  or  ought  to  be  inferred  from  any  general  expression 
of  the  people."^ 

The  people  ought  not  to  be  presumed  to  part  with  rights  so 

^  1  Blackstone,  42.       ^  3  d^h   syc.       »  Wilkinson  v.  Leland,  2  Peters,  627. 


30  ECCLESIASTICAL  LAW. 

vital  to  their  security  without  very  strong  and  direct  intention. 
It  will  be  observed  that  the  fair  inference  to  be  drawn  from  these 
authorities  is,  that  there  are  certain  restrictions  on  legislative 
action  not  to  be  found  in  the  Magna  Charta  or  State  or  Federal 
Constitutions.  These  restrictions  grow  out  of  certain  great  prin- 
ciples of  right  and  justice  in  the  delegation  of  power  conferred 
ijy  the  people  upon  the  government;  and  when  an  attempt  is 
made  to  infringe  these  principles,  it  is  the  duty  of  the  judiciary 
to  arrest  the  law-making  power.  The  question  is  one  full  of  the 
greatest  interest  and  fraught  with  difficulty,  the  difficulty  arising 
not  so  much  from  the  nature  of  the  question  as  from  the  princi- 
ple of  its  application;  though  with  us  abuses  of  this  character 
need  not  be  of  long  continuance  if  the  virtue  of  the  people 
can  be  aroused  and  directed  to  its  repeal  or  overthrow.  The 
history  of  this  country's  legislation  is  replete  wnth  instances 
of  this  species  of  odious  enactments.  The  whole  license  sys- 
tem belongs  to  this  class,  and  yet,  for  more  than  half  a 
century,  it  has  been  tolerated  by  public  opinion  and  silently 
acquiesced  in  by  the  Church,  until  streams  of  moral  desolation 
have  inundated  the  land,  and  victims  are  to  be  found  in  almost 
every  household. 

We  have  said  that  there  are  two  classes  of  offenses,  and  have 
briefly  spoken  of  those  that  are  against  natural  right ;  it  now 
remains  to  treat  of  those  that  are  malum  jJt'ohihihim,  or  such  as 
are  only  wrong  because  they  are  prohibited  either  by  the  law  of 
the  land  or  the  canons  of  the  Church.  The  necessity  for  these 
prohibitions  grows  out  of  our  social  relations.  If  a  man 
wanted  to  live  in  a  state  of  nature,  unconnected  with  other  in- 
dividuals— if  such  a  condition  were  possible — there  would  be  no 
occasion  for  any  other  law  than  the  law  of  nature  and  the  law  of 
God;  neither  could  any  other  law  possibly  exist,  for  law  always 
supposes  some  superior  to  nudce  it,  and  in  a  state  of  nature  man- 
kind is  upon  an  equality,  without  any  sui)erior  but  llim  who  is 
the  Author  of  our. being;  but  as  man  was  formed  for  society,  he 
is  neither  capable  of  living  alone,  nor  has  he  the  courage  to  do  it. 

For  this  reason  human  law,  for  the  benefit  of  society  and  the 
State,  fixes  rules  upon  a  great  number  of  different  points  or 
subjects  upon  which  the  laws  of  nature  and  of  revelation  are  in- 
different.    Herein  it  is  that  human  law  has  its  greatest  force  and 


OFFENSES  AGAINST  THE  CIVIL  GOVERNMENT.  31 

efficacy  ;  for  with  regard  to  such  points  as  are  not  indifferent, 
human  laws  are  only  declaratory,  as  we  have  before  said,  and  in 
subordination  to  the  natural  and  revealed  law.  The  question  is 
often  asked  by  members  of  the  Church,  Are  human  laws  that 
are  only  malum  prohihitum  binding  upon  the  conscience  of  the 
Christian,  and  are  we  equally  bound  to  obey  the  one  as  the 
other  ?  The  answer  is  not  free  from  difficulty ;  both  are  binding. 
Human  law  not  in  conflict  with  the  divine  is  plainly  enjoined  in 
the  Word  of  God.  "'Eender  unto  Csesar  the  things  that  are 
Caesar's,  and  unto  God  the  things  that  are  God's,''  is  the  teach- 
ing of  Him  who  spoke  as  never  man  spoke.  If  any  additional 
authority  is  wanted,  we  have  only  to  refer  to  the  injunction  of 
Paul  where  he  says,  "  Let  every  soul  be  subject  unto  the  higher 
powers  ;  for  there  is  no  power  but  of  God :  the  powers  that  be 
are  ordained  of  God.  Whosoever  resisteth  the  power,  resisteth 
the  ordinance  of  God ;  for  rulers  are  not  a  terror  to  good  works, 
but  to  the  evil."  The  distinction  is  not  in  the  act  of  obedience 
so  much  as  in  the  spirit  with  which  we  obey  and  the  motive 
which  prompts  us  to  perform  the  act. 

There  is  but  one  example  of  a  theocratical  form  of  govern- 
ment; and  in  that  there  is  observable  a  distinctive  feature,  differ- 
ent from  all  human  forms  of  government,  and  that  is,  all  offenses 
committed  against  God  or  his  moral  govei'nment  were  more 
highly  penal  and  visited  Avith  severer  punishments  than  ofi'enses 
merely  against  man.  It  is  probable  that  to  this  fact  the  origin 
of  the  law  of  high  treason  is  traceable,  by  which  offenses  against 
the  government  are  made  more  highly  penal  than  were  offenses 
against  the  subject  or  individual;  and  if  this  is  right — and  we 
doubt  not  that  it  is — then  crime  or  treason  against  the  moral 
government  of  God  should  still  continue  to  be  so  regarded,  be- 
cause he  is  the  original  source  of  power,  whether  spiritual  or 
temporal,  and  his  law  is  paramount  authority. 

It  is  not  our  design  to  enumerate,  or  to  attempt  to  classify 
and  define,  the  various  offenses  against  the  law  of  the  Church 
cognizable  before  the  judicial  tribunals  of  the  Church.  Such  a 
task  does  not  fall  within  the  scope  of  this  work,  neither  is  it 
practicable.  Crimes  are  so  various  and  so  diversified  that  it  is 
impossible  to  set  boundaries  to  them.  Almost  every  day  we  are 
startled  by  some  new  phase   of   crime,  or  by  some  unheard   of 


32  ECCLESIASTICAL  LAW. 

crime,  defying  the  ingenuity  of  legislation  to  anticipate  or  to 
provide  against.  That,  however,  is  an  offense  against  the  canons 
of  the  Church  which  is  prohibited  by  or  clearly  contrary  to  the 
Word  of  God,  or  violative  of  the  principles  of  his  moral  govern- 
ment, and  as  such  is  cognizable  before  the  judicial  tribunals  of 
the  Church,  whose  duty  it  is  to  hear  and  determine  the  same 
in  accordance  with  the  rules  and  usages  of  the  Church,  and 
render  such  decision  or  judgment  as  the  Discipline  prescribes, 
or  where  the  Discipline  is  silent,  then  such  judgment  as  is  con- 
sistent with  the  usages  and  well-being  of  the  Church. 


CHAPTER  X. 

WHO  ARE   LIABLE   TO  BE   DEALT   WITH    UNDER   THE   DISCIPLINARY 
RULES   OF   THE   CHURCH. 

It  is  a  common  fact,  that  while  the  idiot,  the  imbecile  and  the 
lunatic  are  denied  the  enjoyment  of  most  of  their  civil  rights, 
the  Church,  in  her  tenderness  for  the  souls  of  men,  has  quietly 
left  them  in  the  possession  of  the  privileges  of  Church  fellowship 
and  of  becoming  Church  members,  notwithstanding  the  essence 
of  the  act  requires  the  deliberate  and  unbiased  exercise  of  a 
rational  will.  This  anomaly  has  arisen  in  Church  polity  from  a 
natural  jealousy  of  any  attempt  to  encroach  upon  this  most  sacred 
right.  There  is,  however,  a  discretion  vested  by  the  Discipline 
in  the  minister  in  charge,  which  protects  the  Church  from  any 
flagrant  abuse.  He  may  refuse  to  receive  such  an  one  either  on 
probation  or  into  full  connection  and  fellowship  with  the  Church. 
If,  however,  they  are  once  received  into  full  connection  in  the 
Church,  a  very  difficult  question  arises  as  to  how  to  deal  with 
them  for  the  violations  of  the  rules  and  usages  of  the  Church. 
The  little  indulgence  shown  to  imbecility  in  criminal  investiga- 
tions sufficiently  indicates  either  that  the  nature  of  the  mind  is 
very  imperfectly  understood,  or  the  true  ground  of  personal  re- 
sponsibility is  either  ignored  or  not  very  clearly  perceived.  In 
considering  this  question  it  is  well  to  remark  that  our  moral  and 
intellectual  constitution  is  constructed  so  as  to  bring  it  into  har- 
mony with  the  external  world  upon  which  it  acts  and  by  which 
it  is  acted  upon. 


MOTIVE  OR  INTENT.  33 


The  result  of  this  action  is  the  happiness  and  spiritual  ad- 
vancement of  spiritual  beings  endowed  with  power  to  perform 
the  part  allotted  to  them  and  placed  in  a  situation  suitable  for  the 
exercise  and  development  of  their  intellectual  powers.  Thej 
become  accountable  for  the  manner  in  which  those  powers 
are  used  towards  their  Maker  under  all  circumstances  and  to 
their  fellow-men  when  the  institutions  of  society  are  injured. 
All  legal  liability  or  accountability  is  founded  on  this  principle  of 
adaptation,  and  whenever  either  of  its  elements  is  taken  away, 
moral  accountability  is  at  an  end.  The  intellect  must  not  only 
be  sufficiently  developed  to  acquaint  the  individual  with  the  ex- 
istence of  external  objects  and  with  the  source  of  their  relations 
to  him,  but  the  moral  power  must  be  sound  enough  and  strong 
enough  to  furnish  each  its  specific  incentive  to  pursue  that  course 
of  conduct  which  his  intellect  has  already  approved.  It  is  not 
enough  that  the  mind  is  competent  to  discern  some  of  the  most 
ordinary  relations  of  things  in  order  to  accountability.  The 
mind  must  be  sensible  of  the  impropriety  of  the  act ;  for  so  long 
as  the  individual  is  incapable,  by  reason  of  defects  of  constitu- 
tion, of  feeling  the  influence  of  those  hopes  and  fears  and  of  all 
those  sentiments  and  affections  which  man  naturally  possesses,  an 
essential  element  of  legal  responsibility  is  wanting,  and  he  is  not 
accountable  for  his  action.  The  idea  of  crime  is  associated  with 
those  of  injury  and  wrong  committed  by  an  individual  in  posses- 
sion of  a  mind  in  its  normal  condition.  Should  we  then  impute 
crime  where  there  is  neither  intention  nor  consciousness  of 
wrong,  and  where  the  fear  of  punishment  can  not  restrain  such 
a  one  because  his  intellect  can  discern  no  necessary  connection 
between  the  crime  and  the  penalty  attached  to  it,  even  if  he 
were  aware  of  the  existence  of  the  penalty  ? 


CHAPTER  XI. 

MOTIVE    OR    INTENT, 


The  consideration  of  this  question  must  tend  to  throw  light 
upon  what  we  have  heretofore  said,  when  treating  of  mental 
capacity  sufficient  to  render  the  individual  an  accountable 
being,  and  thereby  a  fit  subject  of  punishment.     The  rule  is 


34  ECCLESIASTICAL  LAW 


clearly  stated,  in  Bishop  on  Criminal  Law,  ^  ''  That  there  is  only 
one  criterion  by  which  the  guilt  of  a  man  is  to  be  tested.  It  is 
whether  the  mind  acts  with  criminal  intent ;  for  neither  in  philo- 
sophical relation,  nor  in  religious  nor  moral  sentiment,  would  any 
people  in  any  age  allow  that  a  man  should  be  deemed  guilty 
imless  his  mind  concurred.  It  is,  therefore,  a  principle  of  our 
legal  system,  that  the  evidence  of  evevy  crime  is  the  wrongful 
intent.  The  act  itself  does  not  make  a  man  guilty  unless  his 
intention  accompanied  the  act."  Therefore,  an  act  done  by  one 
against  his  will  is  not  his  act. 

This  view  of  the  question  readily  leads  to  another,  which  is, 
that  in  determining  whether  a  particular  thing  is  or  should  be 
made  the  subject  of  inquiry,  cognizable  by  our  criminal  law, 
we  do  not,  in  our  civil  tribunals,  look  merely  at  the  morals  of 
the  matter,  or  even  at  the  enormity  of  the  evil  sought  to  be 
remedied  ;  but  we  look  at  the  question,  primarily,  as  one  of  gov- 
ernmental judgment,  taking  into  consideration  whether  to  punish 
the  evil  doer,  as  a  rule,  promotes  the  public  peace  and  good  order 
of  society.  And  these  are  considerations  to  be  taken  into  account 
in  Church  trials  and  investigations.  The  Church,  as  organized, 
supplies  the  deficiencies  of  the  civil  government  (consequent 
upon  the  universality  of  its  rules  and  its  secular  offices),  and 
deals  more  immediately  and  directly  with  the  conscience.  It 
gives  greater  heed  to  the  moral  and  spiritual  state  of  its  members, 
and  therefore  takes  notice  of  offenses,  and  treats  certain  things 
as  offenses  against  the  law  of  the  Church  that  are  not  so  re- 
garded by  the  municipal  law  of  the  State. 


CHAPTER  XII. 

IGNORANCE HOW   FAR   AN   EXCUSE. 

There  are  two  kinds  of  ignorance  recognized  by  the  law: 
first,  ignorance  of  law ;  second,  ignorance  of  fact.  The  former 
falls  within  the  old  Koman  maxim,  ignorantia  juris  non  excusat, 
that  is,  that  ignorance  of  the  law  is  no  excuse  for  crime.  It  is  a 
legal  presumption,  conclusive  in  its  character,  that  every  man 
knows  the  law.      This  presumption  is  founded  on  public  policy; 

^  1  Bishop,  370. 


IGNORANCE  — HOW  FAR  AN  EXCUSE.  35 

it  should  never,  however,  be  extended  beyond  its  true  founda- 
tion ;  though  it  may  be  difficult  to  determine,  from  the  authorities, 
how  far  the  foundation  of  the  policy  extends.  Yet  we  may 
safely  lay  down  the  doctrine,  that  no  person,  in  either  a  civil  or 
criminal  proceeding,  can  defend  himself  under  the  naked  plea, 
that  when  he  did  the  thing  complained  of  he  did  not  know  of  the 
existence  of  the  law  he  violated.  This  rule,  so  essential  to  the 
ordinary  administration  of  justice,  can  not  be  deemed  harsh,  even 
in  criminal  cases ;  and  especially  so  of  offenses  that  are  malum  in 
se;  even  if  the  offender  does  not  know  that  the  act  is  prohibited 
by  the  laAv  of  the  land,  he,  at  least,  knows  in  his  conscience  that 
he  is  violating  the  law  of  God ;  and  he  has  little  cause  to  com- 
plain when  visited  in  this  world  by  the  merited  punishment  which 
he  had  desired  to  postpone  until  the  next.  The  principle  of  this 
rule  is  as  applicable  to  Church  investigation  as  it  is  to  trials  in 
our  courts  of  law^  This  is  more  especially  true  since  books 
have  become  so  common,  and  Church  discipline,  and  Church 
history  accessible  to  all. 

Ignorance  of  fact  stands,  in  both  civil  and  criminal  law,  on  an 
entirely  different  basis,  the  maxim  being  ignorantia  fadi  excusat — 
ignorance  or  mistake  of  fact  in  all  cases  of  supposed  offense  con- 
stitutes a  sufficient  excuse;  we  have  said,  in  all  cases  of  supposed 
offense,  being  careful  to  distinguish  between  public  wrongs  and 
private  rights,  where  the  claim  is  based  upon  a  demand  for  the 
simple  reparation  for  the  private  loss  or  injury.  It  is  deemed 
just  and  reasonable,  as  we  have  before  stated,  independent  of  any 
question  of  intent,  that  he  who  occasions  a  civil  injury  should 
make  it  good.  The  wrongful  intent  being  the  essence  of  every 
crime,  it  follows  that  where  a  man  is  misled  without  his  own 
fault,  or  carelessness,  concerning  facts  ;  and  when  so  misled,  acts 
as  he  would  be  justified  in  doing  by  the  facts  such  as  he  believed 
them  to  be,  is  legally  innocent,  the  same  as  he  is  morally  innocent. 
The  rule  is  well  stated  by  Dr.  Wayland,  "  That  if  a  man  knows 
not  the  relation  he  sustains  to  others,  and  has  not  the  means 
of  knowing,  then  he  is  guiltless.  If  he  knew  them,  or  had  the 
means  of  knowing  them,  then  he  is  guilty.''  This  rule  must 
necessarily  form  the  basis  of  every  religious  system. 

There  is  but  a  slight  distinction,  except  in  degree,  between  a 
willful  wrong,  and  indifference  whether  wrong  be  done  or  not,  if 


36  ECCLESIASTICAL  LAW. 


wrong  actually  ensues  from  such  indifference.  On  this  ground, 
carelessness  is  criminal  in  many  cases,  and  supplies  the  direct 
criminal  intent.  Thus,  for  illustration,  if  one  has  an  ox  he 
knows  to  be  dangeroiis,  and  in  the  habit  of  attacking  persons  or 
animals,  and  he  permits  or  suffers  him  to  go  at  large,  and  the  ox 
does  mischief,  the  owner  is  liable  ;  or  if  the  ox  kills  a  person,  the 
owner  is  indictable  for  manslaughter.  So,  also,  one  selling  intox- 
icating drinks,  upon  the  same  principle,  is  liable  criminally  for 
disorderly  conduct  resulting  from  the  drinking  of  the  liquor.  So, 
also,  if  a  person  sets  fire  to  a  building  so  close  to  another  as  to 
endanger  the  latter,  and  the  latter  is  burned,  the  act  of  setting 
fire  to  the  former  is  deemed,  in  law,  to  be  the  burning  of  the 
latter,  ^  while  the  general  principle  is,  that  carelessness,  sufficient 
in  degree,  is  to  be  regarded  in  the  law  as  criminal ;  still  it  will 
not  always  stand  instead  of  the  positive  intent.  There  are 
crimes  that  require  a  concurrence  of  the  will  in  order  to  consti- 
tute them  crimes.  In  respect  to  offenses  of  this  character,  gen- 
eral carelessness  is  not  sufficient.  For  illustration  :  a  charge  of 
larceny,  which  requires  an  intent  to  steal,  could  not  be  based  on 
a  mere  careless  taking  of  another's  goods.  Tt  follows,  from  what 
has  already  been  said,  that  judicial  or  civil  tribunals  do  not  always 
take  jurisdiction  of  all  wrongs.  Neither  is  it  possible  for  Church 
tribunals  to  do  so,  without  disregarding  all  general  rules,  and 
leaving  the  matter  to  the  conscience  of  the  tribunal  before  which 
the  accused  may  happen  to  be  tried. 


CHAPTER  XIII. 

INTENDED    RESULT. 

The  law  holds  every  person  responsible  for  the  intended 
result  of  his  acts,  or,  in  other  words,  for  the  legitimate  conse- 
quences of  the  act.  It  often  happens  that  the  result  of  human 
action  is  different  from  what  the  doer  of  it  intended.  If  the 
motive  is  good,  the  rule,  both  of  morals  and  of  law,  excuses  the 
doer.  Upon  the  other  hand,  if  a  man  designs  ill,  but  uninten- 
tionally the  act  results  in  good,  he  is  nevertheless  morally  guilty ; 
and,  within  certain  limits,  the  law  holds  him  legally  guilty.      We 

'  Gage  v.  Shelton,  3  Rich.  242. 


WHO  ARE  AMENABLE  TO  CHURCH  JURISDICTION.  37 

meet  this  difficulty,  however,  in  the  application  of  this  principle, 
that  to  constitute  a  legal  crime  the  evil  intent  must  have  produced 
an  evil  act.  But,  in  order  to  constitute  the  crime,  it  is  necessary 
that  the  act  be  evil  in  consequence  of  the  evil  mind  from  which 
it  emanated.  Every  act  producing  an  unintended  result  should 
be  measured  either  by  the  intent  or  the  result.  The  criminal 
law  measures  it  by  the  latter,  holding  the  person  guilty  of  the 
thing  done,  where,  in  the  doing  of  it,  there  is  a  legal  wrong 
intended,  the  same  as  though  the  act  done  was  specifically  in- 
tended, though  not  always  guilty  in  the  same  degree.  Where 
one  has  fully  entertained  a  criminal  purpose,  he  should  be  treated, 
so  far  as  from  the  nature  of  the  case  he  is  capable  of  being  so 
treated,  as  having  done  the  thing,  so  far  as  the  moral  and  relig- 
ious aspects  of  the  case  are  concerned.  Anciently  the  will  Avas 
taken  for  the  deed  in  matters  of  felony  ;  although  the  rule  is  now 
changed  or  modified,  it  is  still  an  offense.  Evidently  the  party 
can  not  complain  if  he  is  punished  for  the  intention.  But  society 
has  no  interest  in  interfering  until  it  is  injured  by  an  act  com 
mitted  by  one  of  its  members  ;  therefore,  when  society  punishes 
one  of  its  members  for  the  injury  he  has  done,  such  member  is 
not  wronged,  unless  his  act  is  greater  than  his  intent. 


CHAPTER  XIV. 

WHO    ARE   AMENABLE   TO   THE   JURISDICTION    OF   THE   CHURCH. 

We  have  previously  considered  some  of  the  classes  that  are 
not  amenable  to  the  jurisdiction  of  the  Church,  and  in  this  con- 
nection w^e  will  add  that  in  the  United  States  persons  who  are 
not  members  of  the  Church  are  not  liable  to  be  dealt  with  canon- 
ically  for  the  commission  of  any  offense.  It  is  not  considered 
that  the  offense  of  any  such  persons  is  an  offense  against  the 
Church.  Under  the  laws  of  England  the  contrary  is  the  fact, 
owing  to  the  relation  existing  between  the  Church  of  England 
and  the  civil  government.  In  this  country  the  test  of  jurisdic- 
tion is  membership,  or  authority  over  the  person  of  the  offender. 
In  England  the  test  of  jurisdiction  is  over  the  subject  matter. 
Temporal  matters  are  cognizable  in  England  in  the  temporal  or 
civil  courts.     Ecclesiastical  matters  are  cognizable  without  any 

4 


38  ECCLESIASTICAL  LAW. 


reference  to  membership,  and  are  reducible  under  three  general 
heads :  First,  pecuniary  causes ;  second,  matrimonial  causes ; 
third,  testamentary  causes.  Pecuniary  causes  cognizable  by 
the  ecclesiastical  courts  are  such  as  arise  either  from  withholding 
ecclesiastical  dues  or  doing  or  neglecting  to  do  some  act  relating 
to  the  Church  whereby  some  damage  resulted  to  the  plaintiff,  and 
to  obtain  satisfaction  for  such  damage  he  was  allowed  to  institute 
suit  in  the  ecclesiastical  or  spiritual  courts.  The  principal  of  these 
is  the  subtraction  or  withholding  of  tithes  from  the  parson  or  vicar, 
whether  the  former  be  a  clergyman  or  a  lay  proprietor.  This  right, 
however,  only  existed  between  the  spiritual  man  and  the  layman 
to  compel  the  payment  of  them  when  the  right  was  not  disputed. 

Matrimonial  causes,  or  injuries  respecting  the  right  of  mar- 
riage, was  a  branch  of  ecclesiastical  jurisdiction  far  less  disputed, 
though  if  marriage  is  to  be  considered  in  the  light  of  a  civil  con- 
tract, it  would  not  seem  to  be  of  spiritual  cognizance.  One  of 
the  first  and  principal  matrimonial  causes  was  when  one  of  the 
parties  gave  out  that  he  or  she  was  married  to  the  other, 
whereby  a  common  reportation  of  their  marriage  was  estab- 
lished. Upon  this  ground  the  party  injured  might  libel  the  other 
in  the  spiritual  courts,  unless  the  defendant  undertakes  to  make 
out  proof  of  actual  marriage. 

Suits  for  the  restitution  of  conjugal  rights  were  another 
species  of  matrimonial  causes,  which  wei'e  brought  when  either 
husband  or  wife  was  guilty  of  living  separate  from  the  other 
without  any  sufficient  reason,  in  which  case  the  ecclesiastical 
jurisdiction  of  England  compelled  them  to  come  together  again, 
if  either  party  was  weak  enough  to  desire  it  contrary  to  the 
inclination  of  the  other.  Divorces  were  cognizable  by  the  eccle- 
siastical judges. 

Testamentary  causes  also  belong  to  the  ecclesiastical  or 
spiritual  jurisdiction,  having  been  transferred  to  the  Church  by 
the  favor  of  the  Crown,  which  at  first  blush  would  seem  as 
though  they  are  certainly  of  a  mere  temporal  nature. 

The  points  in  which  these  jurisdictions  are  the  most  defective 
are  those  for  the  enforcement  of  their  sentences  when  pronounced,^ 

'Joseph  Guibord,  ii  lay  Roman  Catholic  parishioner  of  Montreal,  on  the 
18th  of  November,  1^09,  died  a  member  of  the  Institute  Canadien,  a  literary 
society  which  had  incurred  ecclesiastical  censures.     In  his  life-time  a  pastoral 


WHO  ARE  AMENABLE  TO  CHURCH  JURISDICTION.  39 

for  they  have  no  other  power  of  enforcement  but  that  of  excom- 
munication from  the  Church  of  Enghand.  The  power  in  this 
penalty  is,  that  it  is  followed  up  by  certain  disabilities  imposed 
by  law  upon  a  person  under  such  sentence.     He  can  not  serve 

letter  of  the  Bishop  of  Montreal  had  forbidden  such  membership  on  pain  of 
being  deprived  of  the  sacrament  "memed,  I' article  de  la  mori."  During  ill- 
ness, the  priest  who  administered  unction  had  refused  to  administer  holy  com- 
munion, and  at  his  death  six  j'ears  thereafter,  the  cia-e  of  Montreal,  under  the 
direction  of  the  bishop,  refused  " la  stpulture  ecclesiastiqiie"  after  request  duly 
made  in  that  behalf;  that  is  to  say,  the  said  ctire  refused  burial  in  the  larger 
part  of  the  local  cemetery  in  which  Roman  Catholics  are  generally  buried  with 
the  rites  of  the  Church  and  in  which  the  graves  are  consecrated,  but  he  offered 
burial  without  rites  in  the  smaller  or  reserved  part,  in  which  the  graves  are 
never  consecrated  and  in  which  are  buried  unbaptized  infants,  criminals,  and 
those  who  have  died  '^  sans  les  secotirs  on  l-es  sacrements  de  Veglise."  This  pro- 
posal was  rejected,  though  Guibord's  widow  offered  to  accept  burial  in  the  larger 
part  without  religious  services. 

On  a  petition  by  Guibord's  widow  for  a  mandamus  to  the  respondents  upon 
receipt  of  the  customary  fees  to  bury  Guibord's  body  in  the  said  cemetery  con- 
formably to  usage  and  law  and  to  enter  such  burial  in  the  civil  register,  a  writ 
of  mandamus  was  issued  by  the  Superior  Court  which,  in  substance,  called  upon 
the  respondents  to  show  cause  why  a  writ  of  mandamus  should  not  be  issued. 
Thereupon  the  respondents  petitioned  inte)-  alia  that  the  writ  being  of  summons 
and  not  of  mandamus,  might  be  annulled  for  irregularity,  traversed  the  plain- 
tiflf's  petition,  and  pleaded,  first,  the  irregularity  above  mentioned;  secondly, 
that  they  had  not  refused,  but  had  offered  such  burial  as  Guibord  was  entitled 
to ;  thirdly,  that  they  were  legal  proprietors  of  the  cemetery,  free  from  civil  in- 
terference and  control  as  respects  the  service  of  religion  and  the  exercise  of  its 
ceremonies,  and  were  legally  entitled  to  point  out  the  precise  spot  in  the 
cemetery  where  each  burial  was  to  be  made ;  that  they  were  also  civil  officers 
within  certain  limits,  and  civilly  responsible  in  that  capacity  only;  that  they  had 
offered  such  burial  and  refused  nothing  but  ecclesiastical  burial  on  the  ground 
that  Guibord  had  been  for  ten  years  previous  to  his  death  "  notoriously  and  pub- 
licly subject  to  canonical  penalties"  resulting  from  the  before  mentioned  mem- 
bership and  at  the  direction  of  the  proper  ecclesiastical  authorities.  They 
further,  in  replication  to  the  plaintiff's  answer,  denied  that  the  civil  courts  could 
examine  the  grounds  of  refusing  ecclesiastical  burial,  which  they  nevertheless 
specified,  averring  that  in  consequence  of  the  premises  Guibord  must  be  con- 
sidered "  un  pecheiir  public^'  and  as  such  deprived  of  ecclesiastical  burial  by 
the  Roman  Catholic  ritual. 

Held,  firstly,  that  the  writ  of  summons  was  in  proper  form  according  to  the 
code  of  procedure  in  Canada ;  secondly,  that  Guibord  never  having  been  excom- 
municated nominaiitn,  and  never  having  been  proved  or  adjudged  to  be  ^^  un 
pecheur  public"  within  the  meaning  of  the  Quebec  ritual,  was  not,  at  the  time 
of  his  death,  under  any  such  valid  ecclesiastical  sentence  or  censure  as  would, 
according  to  the  Quebec  ritual  or  any  law  binding  upon  Roman   Catholics  in 


■iO  ECCLESIASTICAL  LAW. 

upon  juries;  he  can  not  be  a  witness  in  any  court,  nor  can  he 
bring  an  action  or  suit  at  law ;  finally,  if  Avithin  forty  days  after 
such  sentence  has  been  published  in  the  Church  he  does  not  sub- 
mit and  abide  by  the  sentence  of  the  spiritual  court,  the  bishop 
may  certify  such  contempt  to  the  Court  of  Chancery  and  he  may 

Canada,  justify  the  denial  of  ecclesiastical  sepulture  to  his  remains;  thirdly, 
that  the  respondents,  who  were  sued  in  their  corporate  capacity  as  holders  of 
land  and  administrators  of  the  cemetery,  were  bound  to  give  to  Guibord's  re- 
mains burial  in  the  larger  part  of  the  cemetery  on  payment  of  the  accustomed 
fees,  and  that  a  peremptory  writ  of  mandamus  should  be  issued  accordingly. 

Qnere — Whether  their  lordships  would  have  power  in  a  suit  properly  framed 
for  that  purpose  to  order  the  performance  of  the  usual  religious  rites? 

Although  the  Roman  Catholic  Church  in  Canada  may,  on  the  conquest  in 
1762,  have  ceased  to  be  an  established  Church  in  the  full  sense  of  the  term,  it 
nevertheless  continued  to  be  a  Church  recognized  by  the  State,  retaining  its  en- 
dowments and  continuing  to  have  certain  rights  (for  example,  the  perception  of 
dimes  from  its  members)  enforceable  at  law. 

Although  the  civil  courts  in  Canada  may  not  be  competent  to  entertain  a 
suit  in  the  nature  of  the  ^^ appel  comme  d'ahus"  yet  the  jurisprudence  and  pre- 
cedents relating  to  such  a  suit  may  be  considered  as  evidencing  the  law  of  tlie 
Roman  Catholic  Church  in  Canada. 

Lovg  V.  The  Bishop  of  Capetown,  approved.  Even  if  the  Roman  Catholic 
Church  in  Canada  were  to  be  regarded  merely  as  a  private  and  voluntary  relig. 
ious  society,  resting  only  upon  a  consensual  basis,  courts  of  justice  are  still  bound, 
when  due  complaint  is  made  that  a  member  of  the  society  has  been  injured  as 
to  his  rights  in  any  matter  of  a  mixed  spiritual  and  temporal  character,  to  in- 
quire into  the  laws  and  lules  of  the  tribunal  or  authority  which  lias  inflicted  the 
alleged  injury,  and  to  ascertain  whether  the  act  complained  of  was  in  accordance 
with  the  law  and  rules  and  discipline  of  the  Roman  Catholic  Church  which  ob- 
tain in  Lower  Canada,  and  whether  the  sentence,  if  any,  l)y  which  it  is  sought  to 
be  justified  was  regularly  pronounced  by  competent  authority. 

Semble — The  ecclesiastical  law  which  now  governs  Roman  Catholics  in 
Lower  Canada  must  be  taken  to  be  identical  with  that  wliich  governed  the 
French  Province  of  Quebec,  except  so  far  as  modifications  are  proved  to  have 
been  introduced  by  valid  consensual  contract. 

Their  lordships  approved  the  refusal  by  the  Court  of  Queen's  Bench  to  receive 
a  petition  of  recusation  against  the  judges,  alleging  that  they  acknowledged  the 
Roman  authority  and  were  thereby  disqualified  to  try  whether  the  civil  power  can 
entertain  an  ^^appel  comme  d'abiis." 

In  the  matter  of  Stephen  Girard's  remains  (5  Penn.  Law  Jour.  Rep.  684 
Am.  Law  Jour.  07),  the  remains  of  Stejihen  Girard,  after  being  interred,  were 
exhumed  by  the  authorities  of  Philadeljjliia  with  a  design  to  deposit  them  with 
imposing  public  ceremonies  at  the  Girard  College.  On  the  motion  by  the  ex- 
ecutors for  a  preliminary  injunction  to  restrain  such  action  by  the  city  authorities 
and  to  compel  them  to  restore  the  body  to  its  former  place  of  burial,  the  Court 
said.  In  re  King  (.'5  Penn.  Law  Jour.  Rep.  pp.  78-4): 


WHO  ARE  AMENABLE  TO  CHURCH  JURISDICTION.  41 

be  imprisoned  by  the  sheriff  until  he  becomes  reconciled  to   the 
Church  and  such  reconciliation  certified  by  the  bishop. 

This  notice  of  the  jurisdiction  of  the  spiritual  authority  of' 
the  Church  of  England  will,  perhaps,  enable  the  reader  to  form 
a  more  accurate  idea  of  the  jurisdiction  exercised  over  its  mem- 
bers by  the  Methodist  Episcopal  Church.      Four  important  items 

"The  question  involved  in  the  case  was  of  more  than  ordinary  interest.  No 
analogous  case  could  be  found  in  the  English  or  American  annals.  Is  there  not 
that  in  our  laws  which  guarantees  the  security  of  sepulcher  ?  If  any  person  in 
mere  wantonness  should  break  into  the  grave  and  take  away  the  body,  the 
criminal  law  would  furnish  a  remedy,  and  it  would  even  act  in  a  preventive 
manner.     In  cases  like  the  present,  however,  the  law  has  furnished  no  remedy. 

"It  is  proper,  tj^erefore,  that  a  Court  of  Chancery  should  provide  a  remedy. 
Where  a  person  was  buried  in  a  common  burying  ground  where  the  title  did  nor 
pass,  the  law  did  not  furnish  a  remedy  in  reference  to  a  removal,  but  a  Chancellor 
would  intervene  to  prevent  the  desecration  of  the  grave,  otherwise  bloodshed  and 
violence  would  be  the  consequence.  If  I  had  been  applied  to  before  the  removal 
of  the  body,  I  would  have  interfered.  But  this  is  not  the  case  here.  The  city 
claims  as  the  residuary  legatee,  and  her  motive  was  to  indicate  respect  and  honor 
for  the  memory  of  the  man. 

"If  the  executors  chose  to  disclaim  it  they  might  have  done  so  if  they  were 
executors,  but  if  they  disclaimed  the  relatives  might  be  parties  alone.  In  all 
these  respects  a  court  of  equity  could  interfere.  But  the  body  has  been  removed 
and  the  relatives  had  a  knowledge  of  it.  Even  here  the  court  can  interfere ;  but 
ordering  the  body  back  to  its  former  place  would  be  deciding  the  case.  We  are 
not  asked  to  do  this  now.  It  would  be  deciding  the  case  before  a  hearing.  This 
a  court  never  does  in  granting  an  injunction.  The  body  must  be  placed  tem- 
porarily in  some  respectable  resting  place.  Where  so  proper  a  place  as  in  the 
sarcophagus  at  Girard  College  instead  of  the  garret  where  it  now  is?  The  final 
decision  of  this  case,  from  its  nature,  can  not  be  given  under  six  or  nine  months, 
and  then  an  appeal  lies  to  the  Supreme  Court.  How  much  better,  then,  to  have 
it  deposited  in  the  place  contemplated  than  to  have  it  a  weight  upon  the  com- 
munity. This  appears  to  have  been  agreed  upon  by  both  parties.  The  difficulty, 
however,  appears  to  be  about  the  ceremony.  Some  persons  must  deposit  the 
body  as  it  is  to  be  deposited,  and  what  difference  does  it  make  whether  few  or 
many  attend  the  ceremony,  or  whether  the  Masons  or  any  other  body  attend? 
No  religious  ceremonies  are  in  contemplation.  He  would,  therefore,  refuse  the 
special  injunction  to  the  extent  prayed  for,  and  suffer  the  city  to  proceed  to  in- 
ter the  body  temporarily,  until  its  final  resting  place  should  be  determined  by 
the  Court." 

It  is  true,  the  case  is  but  a  nisi  prius  case  and  was  hastily  decided.  The 
Court,  however,  held  :  first,  as  a  court  of  equity  it  could  and  did  control  the  dis- 
position of  the  body  and  who  should  have  the  control  and  burial  thereof;  second, 
that  in  the  absence  of  executors,  as  where  there  were  none,  or  there  being  ex- 
ecutors they  disclaim  all  connection  with  the  suit,  the  Court  would  proceed  upon 
ilie  ap])lication  of  the  relatives  alone.     In  re  Bettison,  12  Moak  G64-668,  669. 


42  ECCLESIASTICAL  LAW. 


are  to  be  taken  into  account  in  considering  the  causes  that  have 
combined  to  limit  her  jurisdiction:  First,  the  separation  of  the 
Methodist  Church  from  the  Church  of  England ;  second,  the 
separation  of  the  Church  from  the  civil  government ;  third, 
the  express  renunciation  by  the  Church  of  all  jurisdiction  over 
matters  of  a  purely  temporal  character;  fourth,  by  restricting 
the  jurisdiction  to  canonical  offenses  committed  by  its  own 
membership. 

From  what  has  been  previously  said,  it  is  plainly  inferable 
that  the  right  to  try  an  offender  is  limited  to  such  members  as 
are  in  full  connection  with  the  Church,  or  to  such  persons  as  are 
recognized  by  the  Church  as  sustaining  that  relation.  Hence  a 
mere  probationer  can  not  be  tried  by  the  Church,  not  having 
entered  into  the  covenant  relation  of  the  Church  nor  having 
assumed  any  of  its  obligations.  He  can  not  be  arraigned  for 
any  cause,  because  he  is  not  yet  within  the  jurisdiction  of  the 
Church,  nor  can  he  be  tried  till  he  has  served  out  his  six  months' 
probation.  At  the  end  of  six  months,  the  probationary  period 
tixed  by  the  Discipline,  he  may  be  admitted  to  membership, 
and  when  admitted  in  pursuance  of  his  wish,  either  expressed 
or  implied,  he  voluntarily  assumes  all  the  obligations  of  mem- 
bership. The  relation  of  a  member  in  lull  fellowship  with  the 
Church  is  a  covenant  relation,  and  as  such,  it  is  the  foundation 
of  the  jurisdiction  of  the  Church  over  the  member.  Whenever 
a  person  unites  with  a  society  of  any  kind,  there  is  an  implied 
undertaking  on  his  part  to  observe  and  obey  the  rules  of  such 
society  or  Church,  and  if  he  violates  them,  then  he  must  submit 
to  the  penalty  imposed  by  the  society  or  Church.  For  this 
reason  none  can  claim  the  right  of  withdrawal  from  the  Church 
except  in  compliance  with  its  usage.  A  member  has  no  right 
of  withdrawal  while  charges  are  pending  against  him,  unless  by 
the  consent  of  the  Church,  until  the  charges  have  been  with- 
drawn or  investigated  and  he  has  been  declared  innocent. 
Such,  at  least,  is  the  usual  construction  of  the  Discipline  of  the 
]\Iethodist  Episcopal  Church  by  the  chief  administrators.  And 
this,  without  doubt,  is  the  correct  construction,  especially  in 
cases  where  the  charges  involve  grave  crime  or  gross  or  scan- 
dalous offenses.  Under  such  circumstances  the  guilty  party 
should  not  be  allowed  to  evade  the  authority  of  the  Church  by 


WHO  ARE  AMENABLE  TO  CHURCH  JURISDICTIOX.  43 

withdrawing  from  its  jurisdiction.  It  is,  however,  a  matter  of 
discretion,  but  that  discretion  should  always  be  soundly  and 
cautiously  exercised  with  reference  to  the  good  resulting  to  the 
individual  and  the  Church.  While  mercy  should  be  clearly 
manifested  in  all  the  deliberations  of  the  Church,  its  moral  and 
religious  influence  must  be  carefully  preserved. 


Part  Second. 
CHURCH  GOVERNMENT 


CHAPTER  I. 

THE   GOVERNMENT   OF   THE   METHODIST   EPISCOPAL   CHURCH. 

The  governmental  power  of  the  Church  is  vested  in  a  General 
Conference,  Annual  Conferences,  District  Conferences,  Quar- 
terly Conferences,  Bishops,  Presiding  Elders  of  districts,  and 
Preachers  in  charge  of  a  circuit  or  station. 

The  power,  jurisdiction,  and  authority  of  each  is  defined  by 
the  Discipline  and  usages  of  the  Church,  and  which  we  will  now 
treat  of  in  their  order. 


CHAPTER  II. 

THE   GENERAL   CONFERENCE. 

The  General  Conference  is  composed  of  ministerial  and  lay 
delegates.  The  ministerial  delegates  consist  of  one  member  for 
every  forty-five  members  of  each  annual  conference,  and  are 
selected  by  the  annual  conference  by  appointment,  either  by 
seniority  or  choice  (which  we  presume  means  an  election),  at  the 
discretion  of  the  annual  conference.  No  person  shall  be  eligible 
to  the  office  of  ministerial  delegate  who  shall  not  have  traveled 
four  calendar  years  from  the  time  he  was  received  on  trial  by  an 
annual  conference,  and  is  at  the  time  of  his  election  or  appoint- 
ment in  full  connection  with  the  conference  appointing  him. 

The  lay  delegates  shall  consist  of  two  laymen  for  each  annual 
conference,  except  where  a  conference  is  entitled  to  only  one 
ministerial  delegate ;  such  conferences  shall  be  entitled  to  but  one 
lay  delegate.  The  lay  delegates  are  required  to  be  chosen  by  an 
electoral  conference  of  laymen,  assembled  for  that  purpose  on 
the  third  day   of  the  session  of  the   annual   conference,  at    the 

44 


THE  GENERAL  CONFERENCE.  45 

place  (»f  its  meeting;  such  electoral  conference  to  be  held  at 
the  session  of  the  annual  conference  immediately  preceding  the 
General  Conference. 

The  Discipline  provides  that  the  General  Conference  shall 
meet  on  the  first  day  of  May,  in  the  year  of  our  Lord  1812,  in  the 
city  of  New  York,  and  thenceforward  on  the  first  day  of  May, 
once  in  four  years,  perpetually,  in  such  place  or  places  as  shall 
be  fixed  by  the  General  Conference  from  time  to  time. 

The  general  superintendents,  or  a  majority  of  them,  by  or 
with  the  advice  of  two-thirds  of  all  the  annual  conferences,  shall 
have  power  to  call  an  extra  session  of  the  General  Conference  at 
any  time,  to  be  constituted  in  the  usual  way. 

When  the  General  Conference  is  convened  in  session,  it 
requires  two-thirds  of  the  whole  number  of  ministerial  and  lay 
delegates  to  form  a  quorum  for  the  transaction  of  business.  The 
ministerial  and  lay  delegates  sit  and  deliberate  together  as  one 
body;  but  they  vote  separately  "  whenever  such  separate  vote 
shall  be  demanded  by  one-third  of  either  order ;  and,  in  such  cases, 
the  concurrent  vote  of  both  orders  shall  be  necessary  to  complete 
an  action."  That  is,  that  it  shall  require  a  majority  of  both  lay 
and  ministerial  delegates  to  the  passage  of  any  law,  rule,  or  regu- 
lation for  the  government  of  the  Church,  or  to  the  election  of  its 
officers.  The  General  Conference,  when  convened,  shall  be 
presided  over  by  one  of  the  bishops,  or  superintendents ;  but  in 
case  no  general  superintendent  or  bishop  be  present,  the  confer- 
ence shall  choose  a  President  pro  tern. 

The  powers  of  the  General  Conference  are  unlimited  over  all 
matters  pertinent  to  Church  government,  subject  to  the  following 
limitations  and  restrictions  :  namely, 

"§  1.  The  General  Conference  shall  not  revoke,  alter,  or  change  our  Ar- 
ticles of  Religion,  nor  establish  any  new  standards  or  rules  of  doctrine  contrary 
to  our  present  existing  and  established  standards  of  doctrines. 

"§  2.  They  shall  not  allow  of  more  than  one  ministerial  representative  for 
every  fourteen  members  of  the  annual  conference,  nor  allow  of  a  less  number 
than  one  for  every  forty-five,  nor  more  than  two  lay  delegates  for  any  annual 
conference;  provided^  nevertheless,  that  when  there  shall  be  in  any  annual  con- 
ference a  fraction  of  two-thirds  the  number  which  shall  be  fi.xed  for  the  ratio  of 
representation,  such  annual  conference  shall  be  entitled  to  an  additional  delegate 
for  such  fraction;  and,  provided  also  that  no  conference  shall  be  denied  the 
privilege  of  one  delegate. 

"g  3.    They  shall  not  change  or  alter  any  part  or  rule  of  our  government, 


46  ECCLESIASTICAL  LAW. 


so  as  to  do  awaj-  Episcopacy,  or  destroy  tlie  plan  of  our  itinerant  general  super- 
intendency;  but  may  appoint  a  missionary  bishop  or  superintendent  for  any  of 
our  foreign  missions,  limiting  his  jurisdiction  to  the  same,  respectively. 

"§  4.  They  shall  not  revoke  or  change  the  General  Rules  of  the  united 
societies. 

"§  5.  They  shall  not  do  away  the  privileges  of  our  ministers  or  preachers, 
of  trial  by  a  Committee,  and  of  an  appeal ;  neither  shall  they  do  away  the 
privileges  of  our  members,  of  trial  before  the  society,  or  by  a  Committee,  and 
of  an  appeal. 

"  §  6.  They  shall  not  appropriate  the  produce  of  the  Book  Concern,  nor  of 
the  Charter  Fund,  to  any  purpose  other  than,  for  the  benefit  of  the  traveling, 
supernumerary,  superannuated,  and  worn-out  preachers,  their  wives,  widows, 
and  children." 

"^  71.  Provided,  nevertheless,  that  upon  the  concurrent  recommendation 
of  three-fourths  of  all  the  members  of  the  several  annual  conferences,  who  shall 
be  present  and  vote  on  such  recommendation,  then  a  majority  of  two-thirds  of 
the  General  Conference  succeeding  shall  suffice  to  alter  any  of  the  above  re- 
strictions, excepting  the  First  Article;  and  also  whenever  such  alteration  or 
alterations  shall  have  been  first  recommended  by  two-thirds  of  the  General  Con- 
ference, so  soon  as  three-fourths  of  the  members  of  all  the  annual  conferences 
shall  have  concurred  as  aforesaid,  such  alteration  or  alterations  shall  take  effect." 

By  reference  to  the  preceding  sections  of  the  Discipline,  it 
will  be  seen  that  there  is  no  formal  distribution  of  power  —  such 
as  is  usually  found  under  the  organic  laws  of  our  national  and 
State  governments  —  into  executive,  legislative,  and  judicial  de- 
partments. The  General  Conference,  however,  under  that  pro- 
vision of  the  Discipline  clothing  it  with  authority  to  make  rules 
and  regulations  for  the  government  of  the  Church,  may  provide 
for  such  a  distribution  of  power.  And  while  there  is  no  formal 
distribution  of  power,  it  does  not  follow  that  the  distinction  exist- 
ing between  the  exercise  of  executive,  legislative,  and  judicial 
power  is  not  substantial,  and  one  to  be  kept  constantly  in  view.* 

^  Thus,  for  illustration,  *\  240  of  the  Discipline  provides  that  the  General 
Conference  shall  carefully  review  the  decisions  of  law  contained  in  the  records 
and  documents  transmitted  to  it  from  the  judicial  conference;  and,  in  case  of 
serious  error  therein,  shall  take  such  action  as  justice  requires.  It  will  not  be 
controverted,  that  the  determination  contemplated  by  this  paragraph  of  the 
Discipline  is  a  judicial  one;  and  being  a  judicial  one,  that  the  decision  must  be 
made  by  the  General  Conference  in  accordance  with  the  canons  of  the  Church 
in  force  at  the  time  that  the  decision  of  the  judicial  conference  was  made.  The 
General  Conference,  while  sitting  judicially,  can  not  exercise  its  legislative 
function  so  as  to  change  the  Discipline  with  reference  to  judicial  conferences, 
and  then  apj)ly  the  Discipline,  as  changed,  to  the  case  on  hearing  by  the  Genera! 
Conference,  from  the  judicial  conference. 


THE  GENERAL  CONFERENCE.  47 

The  legislative  power  of  the  General  Conference  is  the  law- 
making power  of  the  Church.  And  this  leads  us  to  inquire, 
what  is  a  law?  In  the  commenceuient  we  have  given  Black- 
stone's  definition  of  the  term  ;  but  here  we  will  attempt  a  further 
definition  of  it,  as  applicable  to  the  Church.  It  is  a  rule  of 
universal  application  as  contradistinguished  from  a  sentence  or 
a  decree.  It  operates  on  all  classes,  that  are  amenable  to  it, 
equally,  and  ordinarily  it  is  a  rule  of  prospective  application,  and 
should  never  be  made,  as  we  have  previously  shown,  in  opposi- 
tion to  the  principles  of  natural  justice ;  a  law  can  not  be  made 
to  determine  private  rights,  or  to  decide  private  controversies ; 
the  exercise  of  such  powers,  while  they  are  within  the  jurisdic- 
tion conferred  upon  the  General  Conference,  belong  to  the  judicial 
department  of  the  Church. 

The  French  Code,  by  a  formal  and  express  provision,  pro- 
hibited all  retrospective  legislation,  and  the  principle  upon  which 
such  prohibition  was  founded  is  generally  admitted  to  be  correct. 
But  no  such  universal  restriction  would  answer  with  us,  for  in 
our  civil  legislation  we  are  constantly  passing  laws  of  a  retro- 
spective character,  and  such  laws  have  been  upheld  and  enforced 
within  certain  limits.^ 


^  If  by  an  ex  post  facto  law  are  intended  all  retrospective  statutes  as  well  in 
relation  to  civil  as  criminal  matters  then  this  Court  ought  to  pronounce  the  law 
in  question  nugatory,  as  being  against  the  prohibition  in  the  Constitution  of  the 
United  States.  But  I  do  not  think  the  definition  of  an  ex  post  facto  law  can  be 
extended  beyond  criminal  mattens.  Such  laws  are  only  intended  to  subject  the 
citizen  to  punishment  for  an  act  done  before  the  existence  of  the  law  and  de- 
clared criminal  by  such  subsequent  statute,  or,  according  to  Justice  Blackstone, 
in  his  Commentaries,  when  after  an  action  (and  different  in  itself)  is  committed, 
the  Legislature  for  the  first  time  declares  it  to  have  been  a  crime  and  inflicts 
a  punishment  on  the  person  who  has  committed  it.  Dash  v.  Vankleeck,  7 
John.  482. 

As  to  the  first  point,  it  is  clear  that  this  Court  has  no  right  to  pronounce  an 
act  of  the  State  Legislature  void,  as  contrary  to  the  Constitution  of  the  United 
States,  from  the  mere  fact  that  it  divests  antecedent  vested  rights  of  property. 
The  Constitution  of  the  United  States  does  not  prohibit  the  State  from  passing 
retrospective  laws  generally,  but  only  ex  post  facto  laws.  Now  it  has  been 
solemnly  settled  by  this  Court,  that  the  phrase  "  ex  post  facto  laws  "  is  not  ap- 
plicable to  civil  laws,  but  to  penal  and  criminal  laws,  which  punish  no  party  for 
acts  done  which  were  not  punishable  at  all,  or  not  puni-shable  to  the  extent  or  in 
the  manner  prescribed.  In  short,  ex  post  facto  laws  relate  to  penal  and  crimi- 
nal proceedings  which  impose  punishments  or  forfeitures,  and  not  to  civil  pro- 


48  ECCLESIASTICAL  LAW. 

By  the  constitutional  provisions  generally  adopted  by  the 
States,  private  property  can  be  taken  for  public  uses  on  certain 
terms,  but  can  not  be  taken  for  private  uses.  It  is  the  province 
of  the  legislative  department  of  the  government  to  determine, 
under  this  provision  of  the  Constitution,  the  rules  of  compensa- 
tion that  shall  be  paid  for  private  property  taken  for  public  use 
under  the  law  of  eminent  domain;  but  the  Legislature  in  the 
exercise  of  such  power  can  not  encroach  on  the  judicial  depart- 
ment, as  it  is  the  province  of  that  department  to  determine,  not 
upon  the  rules  for  compensation,  but  upon  the  compensation 
under  those  rules  fixed  by  legislative  authority,  the  right  to  take 
the  property  of  the  individual  and  the  amount  of  compensation 
to  be  paid  such  individual  for  the  property  so  taken ;  thus  dis- 
tinguishing a  law  from  a  sentence,  judgment,  or  decree. 

Authorities  are  not  wanting  that  hold  that  a  Legislature  has 
no  judicial  powers  and  can  not,  on  any  pretense,  interpose 
its  authority  respecting  questions  of  interpretation  pending  in 
the  courts.^ 

We  shall,  therefore,  in  considering  the  distribution  of  powers 
exercised  by  the  bishops  and  by  tlie  General  Conference,  as  far 
as  the  same  falls  within  the  scope  of  this  treatise,  consider  them 
distinct,  and  proceed  to  call  attention,  not  to  the  executive 
powers  of  the  bishops,  nor  to  their  ministerial  duties  as  superin- 
tendents of  the  Church,  any  further  than  such  executive  and 
ministerial  powers  are  connected  with  the  duties  of  the  General 
Conference  while  sitting  in  a  judicial  capacity.  The  bishops  by 
virtue  of  their  office  are  ex  officio  Presidents  of  the  General  Con- 
ference I  but  the  whole  body  of  the  bishops  are  not  required  to 
preside  over  a  General  Conference ;   on  the  contrary,  by  the  ex- 

ceedings  which  afiFect  private  rights  retrospectively.  The  cases  of  Calder  v. 
Bull,  3  Dall.  .^Hfi.,  1  Cond.  Rep.  172.;  Fletcher  v.  Peck,  6  Cranch,  87;  Ogden 
V.  Sanders,  12  Wheat.  200;  Satterlee  v.  Maithcwson,  2  Peters  HBO,  fully  recog- 
nize this  doctrine.      Whatson  v.  Mercer,  11  Curti.s  40. 

The  provision  of  the  Constitution  of  the  United  States  under  which  the 
preceding  decisions  were  made  is  as  follows,  namely:  "No  State  shall  enter 
into  any  treaty,  alliance,  or  confederation;  grant  letters  of  marque  and  reprisal; 
coin  money;  emit  bills  of  credit;  make  any  thing  but  gold  and  silver  coin  a  ten- 
der in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts;  or  grant  any  title  of  nobility." 
^The  People  v.  the  Supervisors  of  New  York,  K,  N.  Y.  432. 


THE  GENERAL  CONFERENCE.  49 

press  provision  of  the  Discipline  as  well  as  by  usage  of  the 
Church,  a  single  bishop  shall  preside  when  the  Conference  is  in 
session,  and  they  may  alternate  with  each  other  accordingly,  so 
as  to  suit  their  pleasure  or  convenience.  The  bishop  while  so 
presiding  is  clothed  with  the  entire  executive  administration  of 
the  Conference  and  of  the  Discipline,  restricted  and  guided,  liow- 
ever,  by  such  rules  and  regulations  as  may  be  adopted  from  time 
to  time  by  the  General  Conference  for  its  government.  Each 
General  Conference  has  power  to  adopt  its  own  rules  and  regula- 
tions, and  when  so  adopted  it  becomes  the  duty  of  the  general 
superintendent  presiding  to  enforce  them  ;  and  in  case  of  a  dis- 
agreement in  the  application  of  those  rules  between  the  general 
superintendent  and  the  Confei-ence,  an  appeal  lies  in  the  manner 
prescribed  by  the  rules  and  regulations  of  the  Conference  from 
the  decision  of  the  general  superintendent  to  the  Conference,  and 
the  decision  of  the  General  Conference  on  such  appeal,  in  ac- 
cordance with  the  rules  and  regulations  adopted,  is  final. 

The  General  Conference  is  the  supreme  judicial  body  of  the 
Church.  From  its  organization  until  1  872  it  had  original  juris- 
diction in  the  trial  of  accused  bishops,  and  appellate  jurisdiction 
in  the  trial  of  traveling  preachers,  and  authority  to  fully  deter- 
mine all  questions  of  law  arising  in  the  judicial  administration 
of  the  Church.  Up  to  and  including  the  General  Conference  of 
1856,  its  judicial  powers  were  exercised  by  the  whole  Conference 
while  sitting  in  its  judicial  capacity.  In  1856  it  was  provided 
that  thereafter  the  General  Conference  might  try  appeals  from 
members  of  annual  conferences  who  may  have  been  suspended, 
expelled,  or  located  without  their  consent,  by  a  committee  e«i- 
bracing  not  less  than  fifteen  of  its  members,  nor  more  than  one 
from  each  delegation,  which  committee,  in  the  presence  of  a 
bishop  presiding,  had  full  power  to  hear  and  determine  the  case. 
Thenceforward  such  appeals  were  always  tried  by  such  a  com- 
mittee. In  1872  this  provision  was  superseded  by  one  creating 
a  judicial  conference  for  the  trial  of  appeals. 

The  General  Conference  has  now  original  jurisdiction'   over 

^  Jurisdiction  is  a  power  legally  conferred  upon  a  judge,  magistrate,  or  other 
person  to  take  cognizance  of  and  decide  causes  according  to  law,  and  to  carry 
the  sentence  into  execution.     In  the  matter  of  Ferguson,  9  John.  241. 

The  tract  of  land  or  district  within  which  a  judge  or  magistrate  has  juris- 


50  ECCLESIASTICAL  LAW. 

but  one  class  of  cases,  namely,  over  the  trial  of  a  bisliop  accused 
of  maladministration.  Its  judicial  authority  in  all  other  cases  is 
of  an  appellate  nature.  In  the  appeal  of  a  bishop  from  a  judi- 
cial conference,  the  General  Conference  must  pass  upon  the 
question  of  his  guilt  or  innocence  ;  but  in  other  cases  it  sits  not 
so  much  to  pass  upon  the  guilt  or  innocence  of  the  accused,  only 
as  it  may  happen  to  be  incidentally  involved,  but  to  inquire  into 
the  regularity  of  the  proceedings  of  some  inferior  judicial  tribu- 
nal of  the  Church,  such  as  an  annual  conference  or  a  judicial 
conference,  or  the  decision  of  a  bishop  made  in  such  conference, 
for  the  purpose  of  correcting  and  revising  any  errors  or  im- 
proper rulings  that  may  have  been  made  by  such  inferior  tri- 
bunal and  certified  in  its  record. 

diction  is  called  bis  territory,  and  his  power  in  relation  to  his  territory  is  called 
his  territorial  jurisdiction. 

Every  act  of  jurisdiction  exercised  by  a  judge  without  bis  territory,  eithei' 
by  pronouncing  sentence  or  carrying  it  into  execution,  is  null  and  void.  An 
inferior  court  has  no  jurisdiction  beyond  what  is  expressly  delegated.  1  Salk. 
404,  note  Gilb.  C.  P.  188;   1  Saund.  78;  2  Lord  Raym.  1.311. 

Jurisdiction  is  original  when  it  is  conferred  on  the  court  in  the  first  instance, 
which  is  called  original  jurisdiction;  or  it  is  appellate,  which  is  when  an  appeal 
is  given  from  the  judgment  of  another  court.  Jurisdiction  is  also  civil  where 
the  subject  matter  to  be  tried  is  not  of  a  criminal  nature;  or  criminal,  where 
the  court  is  to  punish  crimes.  Some  courts  and  magistrates  have  both  civil  and 
criminal  jurisdiction.  Jurisdiction  is  also  concurrent,  exclusive,  or  assistant 
Concurrent  jurisdiction  is  that  which  may  be  entertained  by  several  courts.  It 
is  a  rule  that  in  case's  of  concurrent  jurisdiction  that  which  is  first  seized  of  the 
case  shall  try  it  to  the  exclusion  of  the  other.  Exclusive  jurisdiction  is  that 
which  has  alone  the  power  to  try  or  determine  the  suit,  action,  or  matter  in  dis- 
pute. Assistant  jurisdiction  is  that  which  is  afforded  by  a  Court  of  Chancery  in 
aid  of  a  Court  of  Law,  as,  for  example,  by  a  bill  of  discovery,  by  the  examina- 
ation  of  witnesses,  de  bene  esse,  or  out  of  the  jurisdiction  of  the  court,  by  the 
perpetuation  of  the  testimony  of  witnesses,  and  the  like. 

It  is  the  law  which  gives  jurisdiction  over  the  subject  matter,  and  the  con- 
sent of  parties  can  not,  therefore,  confer  it  in  a  matter  which  the  law  excludes, 
nor  can  the  want  of  it  be  waived;  but  when  the  law  confers  upon  the  court 
original  jurisdiction  of  the  subject  matter,  full  appearance  without  objection  con- 
fers upon  the  court  jurisdiction  of  the  person,  and  it  may  be  adjudicated. 
Hayes  v.  Cadwell,  5  Oilman,  .33 ;  People  v.  Scotes,  3  Scam.  353 ;  Williams  v. 
Blankenship,  12  Ills.  122;  .?  M'Cord  280;  1  J.  J.  Marsh.  '176.  Courts  of  in- 
ferior juri.sdiction  must  act  within  their  jurisdiction,  and  so  it  must  appear  upon 
the  record,  Williams  v.  Blunt,  2  Mass.  213;  Kcmpe  s  Lessee  v.  Kennedy,  2  Cur- 
tis 224  ;  but  the  Legislature  may,  by  a  general  or  special  law,  provide  otherwise. 
Bouvier's  Dictionary,  page  683. 


THE  JUDICIAL  CONFERENCE.  51 

There  are  three  classes  of  cases  that  come  within  the  appel- 
late jurisdiction  of  the  General  Conference :  First,  to  review  an 
appeal  from  the  decision  of  a  bishop  on  a  question  of  law  decided 
by  such  bishop  during  the  trial  of  a  cause  pending  in  an  annual 
or  judicial  conference;  Second,  to  review  the  findings  and  deter- 
mination of  a  judicial  conference  in  the  case  of  a  bishop  accused 
of  immoral  or  imprudent  conduct ;  Third,  to  review  on  appeal  from 
a  conference  outside  of  the  territorial  limits  of  the  United  States 
a  case  heard  and  decided  by  such  conference. 

Where  the  appeal  comes  up  from  a  conference  beyond  the 
territorial  limits  of  the  United  States  to  the  General  Conference, 
its  appellate  jurisdiction  is  not  exclusive,  but  concurrent  with  the 
judicial  conference  called  by  a  bishop  to  meet  at  or  near  New 
York  in  accordance  with  the  provisions  of  ^  241  of  the  Discipline. 


CHAPTER  III. 

THE   JUDICIAL    CONFERENCE. 

The  Discipline  provides  for  a  judicial  conference,  that  shall 
have  appellate  jurisdiction  in  cases  of  appeals  taken  by  traveling 
ministers  or  preachers  from  the  decision  of  an  annual  confer- 
ence. The  judicial  conference  shall  be  composed  of  not  more 
than  twenty-one  nor  less  than  thirteen  elders,  of  experience  and 
sound  judgment  in  the  affairs  of  the  Church.  The  several  annual 
conferences  in  the  United  States  shall,  at  each  session  of  such 
annual  conference,  select  seven ;  and  when  notice  of  an  appeal  is 
given  to  the  President  of  an  annual  conference,  he  shall  proceed, 
with  due  regard  to  the  wishes  and  rights  of  the  appellant,  to 
designate  three  conferences  conveniently  near  that  from  which 
the  appeal  is  taken ;  and  when  so  designated,  the  seven  elders, 
selected  by  the  annual  conference  as  above  mentioned  from  the 
three  conferences  designated  by  the  President  of  an  annual  con- 
ference, shall  constitute  a  judicial  conference  ;  and  the  bishop  or 
President  of  such  annual  conference  shall  fix  the  time  and  place 
of  its  sessions,  and  give  notice  thereof  to  all  concerned.  From 
the  language  of  ^  235  of  the  Discipline,  it  appears  that  the  an- 
nual conference,  from  whose  decision  the  appeal  is  taken,  should 
not  be  included  in  the  three  conferences  designated  by  the  Presi- 
dent of  such  annual  conference.     There  is  great  propriety,  aside 


52  ECCLESIASTICAL  LAW. 

from  the  language  of  the  Discipline,  in  giving  to  this  paragraph 
such  a  construction  ;  for  the  reason  that  the  seven  elders,  selected 
by  such  annual  conference,  may  have,  upon  the  trial  of  such 
traveling  minister  or  preacher,  taken  part  in  the  decision  ap- 
pealed from. 

Judicial  conferences,  thus  constituted,  are  clothed  with  no 
original  jurisdiction  whatever :  they  are  designated  in  the  Dis- 
cipline as  ''  triers  of  appeals."  Their  jurisdiction  is  special, 
limited,  and  appellate  ;  they  have  no  authority  to  try  a  party 
accused  of  an  offense  against  the  canons  of  the  Church  until  he 
has  been  previously  tried  and  convicted  by  an  annual  conference. 
An  appeal  will  not  lie  from  a  mere  interlocutory  finding  of  the 
annual  conference,  or  of  the  select  number  of  the  annual  confer- 
ence. It  is  not  enough,  to  authorize  an  appeal  from  an  annual  to 
a  judicial  conference,  that  the  traveling  minister  or  preacher 
should  have  been  found  guilty  by  such  annual  conference,  or  by 
the  select  number  of  such  annual  conference.  Such  anrmal  con- 
ference, or  committee,  must  proceed,  in  accordance  with  tlie  find- 
ing, to  pronounce  sentence;  for  until  this  is  done  the  case  is  still 
pending  before  such  annual  conference,  or  committee,  and  no 
appeal  is  authorized  to  be  taken  to  the  judicial  conference  until 
the  case  is  finally  disposed  of  by  the  annual  conference,^  neither 
has  the  judicial  conference  authority  to  hear  an  appeal,  unless  the 
same  has  been  taken  by  a  traveling  minister  or  preacher  in  full 
connection  with  the  Church.  Hence,  an  appeal  will  not  lie  from 
the  annual  to  the  judicial  conference  where  the  appellant  is  a 
preacher  on  trial,  or  a  local  preacher. 

Where  there  are  several  appeals  taken  from  the  same  annual 
conference,  or  from  adjacent  annual  conferences,  but  not  from 
either  of  the  conferences  from  which  the  triers  of  appeals  are 
taken,  and  the  time  and  place  fixed  by  the  President  of  the  con- 
ference is  such  that  they  can  all  be  heard  before  the  same  judicial 
conference,  and  the  same  judicial  conference  is  designated  by  the 
President  of  the    annual  conferences,  respectively,   from  which 

'  It  is  well  settled  that  an  appeal,  or  writ  of  error,  will  not  lie  from  an 
interlocutory  order.  It  must  be  a  final  adjudication,  or  judj^inent,  to  enable  the 
party  to  have  it  reviewed  by  an  appellate  court.  A  party  can  not  bring  his  case 
from  a  court  of  original  jurisdiction  to  an  appellate  court  by  jjiecemeal.  Pen- 
tecost  v.Mayahee,  4  Scam.  32(5.     Fleece  v.  Bussell,  ei  al,  13  Ills.  33. 


THE  JUDICIAL  POWERS  OF  AN  ANNUAL  CONFERENCE.       53 


the  appeals  are  taken,  tlie  judicial  conference  will  liave  authority 
to  hear  all  the  appeals  thus  taken  to  them,  at  the  same  session  ; 
but  a  judicial  conference  has  no  authority,  even  by  the  agreement 
of  parties,  to  hear  an  appeal  which  has  been  referred  by  a  Presi- 
dent of  an  annual  conference  to  some  other  judicial  conference. 


CHAPTER  IV. 

THE   JUDICIAL   POWERS   OF   AN   ANNUAL   CONFERENCE. 

By  the  provisions  of  ^  211  of  the  Discipline  it  is  provided 
that  the  conference  having  jurisdiction  may,  if  it  deem  it  expe- 
dient, try  the  accused  by  a  select  number.  Thus,  it  may  appoint 
not  less  than  nine  nor  more  than  fifteen  of  its  members  for  that 
purpose  ;  or  the  conference  having  jurisdiction  may  hear  and 
determine  the  case  in  open  conference  without  referring  it  to  a 
select  number  as  contemplated  by  ^  211,  before  referred  to. 

Independent  of  this  authority,  conferred  by  the  Discipline 
upon  the  annual  conference  to  appoint  a  select  number,  it  is 
evident  that  no  such  select  number,  if  appointed,  would  have  any 
authority.  The  power  to  appoint  the  select  number  is  conferred 
by  the  Discipline  upon  the  conference ;  and  that  power  must  be 
exercised  in  the  manner  pointed  out.  For,  while  it  may  be  true, 
that  there  are  certain  intendments  in  favor  of  the  legality  and 
regularity  of  the  proceeding,  there  can  be  no  intendment  in  favor 
of  the  right  to  decide.  That  right  is  not  inherent  in  the  select 
body;  but  the  warrant  for  its  exercise  must  be  found  in  the 
Discipline.^ 

^In  pleading  a  judgment  of  a  court  of  limited  jurisdiction,  it  is  necessary 
to  state  those  facts  which  gave  the  court  jurisdiction ;  and  having  done  so,  then 
to  allege  generally  the  judgment  of  the  court.  7  Tenn.  Reports,  305.  In  Sai- 
lers V.  Lawrence  (Willes  191t)  Willes,  Ch.  J.,  in  considering  the  proceedings  of  a 
court  of  a  special  and  limited  jurisdiction,  lays  down  the  rule  to  be,  that  nothing 
is  to  be  intended  in  favor  of  their  jurisdiction  ;  but  that  it  must  appear  by  what 
is  set  forth  in  the  record,  that  they  had  such  a  jurisdiction ;  and,  if  they  had  juris- 
diction, every  thing  must  be  intended  in  favor  of  their  judgment,  and  they  must 
be  taken  to  have  judged  right,  unless  the  contrary  appears,  by  any  thing  that 
is  set  forth  on  the  record.  Mills  v.  Martin,  19  John.,  34.  In  the  case  of  Wise 
V.  Withers  (3  Cranch's  Rep.,  331)  the  Supreme  Court  of  the  United  States 
proceeded  on  the  principle  laid  down  in  the  cases  cited  from  Willes.  A  Justice 
of  the  Peace  had  been  fined  by  a  court-martial,  within  the  District  of  Columbia ; 

5 


04  ECCLESIASTICAL  LAW. 


The  annual  conference,  in  addition  to  the  jurisdiction  that  it 
exercises  over  traveling  preachers,  superannuated  and  supernu- 
merary preachers,  is  also  clothed  with  certain  appellate  jurisdiction 
over  cases  appealed  from  the  district  and  quarterly  conferences. 
Thus,  by  ^  212  of  the  Discipline,  it  is  provided  that  a  preacher 
on  trial,  who  may  be  accused  of  a  crime,  shall  be  accountable 
to  the  quarterly  conference  of  the  circuit  on  which  he  travels  ; 
and  that  the  presiding  elder  shall  call  a  committee  of  three  local 
preachers  that  may  suspend  him  ;  and  that  the  quarterly  confer- 
ence may  try,  and  expel  him  ;  and  that  when  he  is  expelled  by 
the  action  of  the  quarterly  conference,  he  shall  have  a  right  to 
an  appeal  to  the  next  annual  conference;  and  by  the  provision 
of  ^  213,  when  a  local  elder,  deacon,  or  preacher,  is  charged  with 
being  guilty  of  some  crime  expressly  forbidden  in  the  Word  of 
God,  the  preacher  having  charge  shall  call  a  committee  consist- 
ing of  three  or  more  local  preachers,  before  which  it  shall  be  the 
duty  of  the  accused  to  appear,  and  by  which  he  shall  be  ac- 
quitted, or  if  found  guilty,  suspended  until  the  next  quarterly 
(or  district)  conference;  and  in  case  of  condemnation,  the  local 
preacher,  deacon,  or  elder,  shall  be  allowed  to  appeal  to  the  next 
annual  conference.  The  manner  of  procedure  wall  be  pointed  out 
hereafter,  when  we  come  to  treg,t  of  the  practice  upon  the  hear- 
ing of  a  cause  originally  brought  before  the  conference,  and  of 
proceedings  in  cases  of  appeal. 


CHAPTER  V. 

THE  JUDICIAL  POWERS  OF  A  DISTRICT  CONFERENCE. 

The  Discipline  confers  no  appellate  jurisdiction  whatever  on 
a  district  conference ;  and  it  clothes  such  conference  with  juris- 
diction only  to  hear  complaints  against  local  preachers;  to  try, 
suspend,  deprive  of  ministerial  office  and  credentials,  expel  or 

and  for  taking  his  goods  to  satisfy  the  fine,  an  action  of  trespass  was  brought 
against  the  collector.  It  was  decided,  first,  that  a  justice  of  the  peace  within 
the  district  was  not  liable  to  do  militia  duty.  Secondly,  that  a  court-martial 
had  no  authority  or  jurisdiction  over  him  ;  thirdly,  that  it  was  a  principle,  that 
a  decision  of  such  a  tribunal  in  a  case  without  its  jurisdiction  can  not  protect 
the  oilicer  who  executes  it;  that  the  court  and  officers  are  all  trespassers. 


THE  POWERS  OF  THE  BISHOPS.  55 

acquit  any  local  preacher  against  whom  charges  may  be  preferred. 
The  other  powers,  enumerated  in  the  Discipline,  conferred  upon 
district  conferences,  are  purely  of  an  administrative  character. 
The  district  conference,  by  the  provision  of  ^  92  of  the  Dis- 
cipline does  not  become  operative  and  binding,  except  in  those 
districts  in  which  the  quarterly  conferences  of  a  majority  of 
the  circuits  and  stations  shall  approve  the  same  by  asking 
the  presiding  elder  to  convene  a  district  conference ;  and  a  dis- 
trict conference,  when  convened,  is  clothed  with  some,  though 
not  all,  the  powers  conferred  on  a  quarterly  conference.  And 
this  is  especially  true  of  the  judicial  powers;  for,  notwithstanding 
the  creation  of  the  district  conference,  the  appellate  jurisdiction 
of  the  quarterly  conference  is  continued,  even  in  those  districts 
where  a  district  conference  is  established ;  so,  also,  proceedings 
against  a  preacher  on  trial  are  restricted  to  a  committee  ap- 
pointed by  the  presiding  elder,  or  to  the  quarterly  conference. 
These  embrace  all  the  enumerated  judicial  powers  conferred  upon 
either  of  the  conferences ;  and  we  propose  to  follow  this  enumera- 
tion with  reference  to  the  judicial  powers  conferred  upon  the 
administrators  of  the  Discipline. 


CHAPTER  VI. 

THE   POWERS   OF   THE   BISHOPS. 

The  election,  term  of  office,  powers  and  authority  of  the 
bishops,  or  of  a  bishop,  so  far  as  such  powers  or  authority  are  the 
mere  exercise  of  the  administration  of  the  Discipline,  do  not 
fall  within  the  province  of  this  treatise.  Such  powers  are  suffi- 
ciently described  and  defined  by  ^  157  of  the  Discipline,  and  all 
of  the  powers  in  that  section  enumerated,  except  those  embraced 
in  §§  4  and  8,  belong  strictly  to  that  class.  By  the  provision  of 
§  4  a  bishop,  in  the  interval  of  the  annual  conference,  has 
authority  to  change,  receive,  and  suspend  preachers,  as  necessity 
may  require  and  as  the  Discipline  directs.  The  exercise  of  this 
power,  while  it  may  to  some  extent  partake  of  the  exercise  of 
executive  authority,  has  also  in  it  some  of  the  elements  of  judi- 
cial determination,  for  it  requires  judgment,  deliberation,  and 
decision.     Section  8  of  paragraph  157  of  the  Discipline  confers 


56  ECCLESIASTICAL  LAW. 

upon  the  bishop  presiding  in  an  annual  conference,  or  a  bishop 
presiding  over  a  select  number,  authority  that  is  strictly  judicial ; 
and  by  the  express  provision  of  the  Discipline  the  exercise  of 
this  authority  is  made  the  subject  of  review  before  the  proper 
appellate  tribunal.  A  bishop  is  also  empowered  to  preside  in  a 
district  conference  where  a  local  preacher  is  on  trial  accused  of 
the  commission  of  a  canonical  offense,  or  where  a  traveling 
preacher  is  accused  of  a  crime  or  of  immorality  in  the  interval 
of  an  annual  conference  ;  but  this  right  is  rather  by  implication 
than  by  express  authority  conferred  upon  the  bishop  by  the  Dis- 
cipline, the  language  being,  "  In  the  interval  of  the  annual  con- 
ference let  the  presiding  elder,  in  the  absence  of  a  bishop,  call 
as  many  traveling  ministers  as  he  shall  think  fit,  at  least  five," 
etc.  By  a  careful  analysis  of  §  4,  under  the  title,  ''Bishops," 
previously  referred  to,  and  §  1  of  ^  203,  we  are  inclined  to  the 
opinion  that  a  bishop,  in  the  interval  of  an  annual  conference, 
where  an  elder,  deacon,  or  preacher  is  accused  of  being  guilty 
of  crime,  may  proceed  by  the  calling  of  a  committee,  if  he  shall 
think  fit,  to  investigate  the  matter;  and  if  in  the  judgment  of 
said  committee,  upon  such  investigation,  the  accused  is  found 
guilty  of  the  offense,  he  may  be  suspended  from  ministerial  serv- 
ices and  Church  privileges  until  the  ensuing  annual  conference. 
In  addition  to  tlie  judicial  duties  already  enumerated,  it  is 
also  made  the  duty  of  a  bisliop  to  preside  in  a  judicial  confer- 
ence, and  also  to  decide  all  questions  of  law  arising  therein. 
While  it  is  clear  that  the  judicial  conference  decides  all  questions 
of  fact  arising  upon  the  face  of  the  record  and  documents  trans- 
mitted to  it  by  the  annual  conference,  yet  the  Discipline  does  not 
expressly  declare  whose  duty  it  shall  be  to  decide  questions  of 
law  arising  in  like  manner.  The  provision  for  trying  appeals  by 
a  judicial  conference  was  made  by  the  General  Conference  of 
1872,  and  it  became  necessary  very  early  in  the  administration 
of  that  method  of  trying  appeals  to  determine  by  whose  author- 
ity questions  of  law  arising  in  these  conferences  were  to  be  de- 
cided. After  the  most  careful  consideration  of  the  matter  in  all 
its  relations  and  bearings,  the  bishops  judged  it  to  be  the  duty 
of  the  bishop  presiding  in  a  jiidicial  conference  to  decide  all 
questions  of  law  arising  in  that  bf>dy,  and  in  their  administration 
they  governed    themselves    accordingly.     The  bishops  reported 


THE  POWERS  OF  THE  BISHOPS.  57 

their  decision  and  action  in  this  matter  to  the  Genex-al  Conference 
of  1876,  requesting-  that  body  to  correct  them  if  they  had  erred 
in  thus  ruling.  Though  this  ruling  was  brought  thus  directly 
and  distinctly  to  tiie  attention  of  the  General  Conference,  with 
the  request  from  the  bishops  that  if  it  were  erroneous  it  should 
be  corrected,  yet  that  body  took  no  action  whatever  on  the  sub- 
ject, and  thus  tacitly,  if  not  formally,  approved  the  decision  and 
administration  of  the  bishops  in  the  premises,  and  settled  it  as 
the  legal  rule  that  all  questions  of  law  arising  in  judicial  confer- 
ences are  to  be  decided  by  the  bishop  presiding,  subject  to  be 
reviewed  and  corrected  by  the  General  Conference. 

A  bishop  is  also  empowered  by  the  Discipline  to  preside  over  a 
judicial  conference  convened  for  the  trial  of  a  bishop,  and  while 
presiding  over  such  a  conference  his  authority  to  decide  all  ques- 
tions of  law  arising  during  the  trial  is  strictly  analogous  to  the 
authority  of  a  nisi  prius  judge ;  in  other  words,  the  bishop  presid- 
ing in  such  a  trial  determines  the  law  of  the  case,  and  the  confer- 
ence responds  as  to  the  facts.  If  a  bishop,  while  presiding  upon 
the  trial  of  a  bishop,  were  to  err  in  the  administration  of  the  law, 
the  conference  would  have  no  power  to  review  his  decision  ;  but  if 
his  decision  were  erroneous,  and  the  bishop  on  trial  was  convicted, 
he  would  have  the  right  to  an  appeal  to  the  General  Conference, 
where  the  error,  if  any,  in  the  rulings  might  be  corrected. 

Paragraph  318  provides,  that  the  three  members  of  the  "  Book 
Committee  "  at  New  York  and  the  three  members  at  Cincinnati  shall 
have  power  to  suspend  an  agent  or  editor  for  cause  to  them  suffi- 
cient, and  a  time  shall  be  fixed  at  as  early  a  day  as  practicable  for 
the  investigation  of  the  official  conduct  of  said  agent  or  editor,  due 
notice  of  which  shall  be  given  by  the  chairman  of  the  Book  Com- 
mittee to  the  bishops,  who  shall  select  one  of  their  number  to  be 
present  and  preside  at  the  investigation,  which  shall  be  before  the 
twelve  members  from  the  districts  into  which  the  annual  confer- 
ences are  distributed  ;  two  thirds  of  whom  may  remove  said  agent 
or  editor  from  office  in  the  interval  of  the  General  Conference.  Un- 
der this  provision  of  the  Discipline  the  three  members  at  New  York 
and  the  three  at  Cincinnati  are  clothed  with  a  kind  of  a  quasi  judi- 
cial authority  to  suspend  an  agent  or  editor,  not  arbitrarily,  but 
for  sufficient  cause,  from  his  official  trust  as  such  agent  or  editor. 
The  suspension,  however,  is  only  temporary  until  an  investiga- 


58  ECCLESIASTICAL  LAW. 


tion  can  be  had  into  the  alleged  official  misconduct  of  such  agent 
or  editor.  Where  an  agent  or  editor  is  suspended  as  contem- 
plated by  ^  218  of  the  Discipline,  by  the  action  of  the  New  York 
and  Cincinnati  members  of  the  Committee,  it  is  undoubtedly  the 
duty  of  such  members  to  prepare  or  cause  to  be  prepared  regu- 
lar charges  and  specifications  against  the  accused  agent  or  editor ; 
and  cause  notice  to  be  given  by  the  chairman  of  the  Book  Com- 
mittee to  the  bishops.  The  accused  should  also  be  served  with  a 
copy  of  the  specifications  and  charges,  together  with  a  notice  of 
the  time  and  place  fixed  for  the  investigation.  The  Discipline 
provides  that  the  investigation  of  the  charges  and  specifications 
involving  the  official  conduct  of  the  accused  shall  take  place  be- 
fore the  twelve  niembers  of  the  Book  Committee,  chosen  by  the 
General  Conference  as  the  representatives  of  the  twelve  districts 
of  conferences  into  which  the  whole  Church  had  been  divided. 

It  would  seem  from  the  scope  of  the  Discipline  and  from  the 
nature  of  the  case,  that  the  chairman  of  the  Book  Committee  and 
the  bishop  designated  to  preside  should  fix  the  time  and  place  for 
the  investigation.  Twelve  members  are  designated  as  constituting 
the  tribunal  before  which  such  investigation  takes  place ;  and  an 
important  inquiry  arises :  Can  an  investigation  be  had  before  a 
less  number,  or  must  twelve  members  sit  in  order  to  constitute  the 
tribunal  a  legal  one  ?  The  authority  is  wholly  disciplinary,  and 
upon  principle  the  tribunal  should  be  constituted  in  accordance 
with  its  provisions  ;  and  it  is  fair  to  conclude  that  the  whole 
number  designated  are  required  to  be  present  and  take  part  in 
the  deliberation,  although  two-thirds,  or  eight  of  the  Committee, 
have  power  to  remove  such  agent  or  editor  from  office  in  the 
interval  of  the  annual  conference. 

This  investigation  is  in  the  nature  of  impeachment,  and 
partakes  of  a  judicial  character,  and  should  bo  investigated  the 
same  as  any  other  disciplinary  offense  ;  and  the  Committee,  while 
engaged  in  such  investigation,  should  be  presided  over  by  the 
Ijishop  selected  by  the  board  of  bishops.  The  powers  of  the 
bishop,  Avhile  presiding,  are  not  defined  by  the  Discipline.  It  is, 
however,  fair  to  presume  that  he  is  clothed  with  authority  during 
such  investigation  to  decide  all  preliminary  questions,  and  all 
questions  of  law. 

Finally,  a  bishop  has  the  right  to  preside  in  the  General  Con- 


THE  JUDICIAL  POWERS  OF  A  PRESIDING  ELDER.  59 

ference  where  such  conference  is  exercising  an  appellate  juris- 
diction; but  there  his  decisions  are  only  binding  on  the  General 
Conference,  or  the  Judiciary  Committee  of  the  General  Confer- 
ence, so  far  as  acquiesced  in  by  the  General  Conference,  or  by 
the  Judiciary  Committee  of  the  General  Conference. 

There  is,  therefore,  a  marked  distinction  to  be  observed 
between  the  duties  and  responsibilities  of  a  bishop  when  pre- 
siding in  an  annual  or  judicial  conference  when  it  is  exercising 
either  original  or  appellate  jurisdiction,  and  his  duties  and  re- 
sponsibilities when  presiding  in  the  General  Conference  whose 
authority  is  supreme,  and  in  which  all  errors  of  administration 
in  inferior  tribunals  are  subject  to  final  review  and  correction. 


CHAPTER  VII. 

THE  JUDICIAL  POWERS  OF  A  PRESIDING  ELDER. 

The  judicial  powers  of  the  presiding  elder  are  much  the  same 
within  certain  limits,  prescribed  by  the  Discipline,  as  those  that 
are  conferred  upon  the  bishop.  His  duties,  of  course,  are,  to 
some  extent,  subordinate  to  the  power  and  authority  of  the  bishop. 
He  should  see  that  every  part  of  the  Discipline  is  enforced  in  his 
district,  and  it  is  his  duty,  in  the  absence  of  the  bishop,  to  take 
charge  of  all  the  elders  and  deacons,  traveling  and  local  preach- 
ers, and  exhorters,  in  his  district  *,  and  he  has  power  to  change, 
receive,  and  suspend  preachers,  in  his  district,  during  the  inter- 
vals of  the  conferences,  and  in  the  absence  of  the  bishop,  as  the 
Discipline  directs ;  provided,  however,  that  a  presiding  elder 
shall  not  change  a  preacher  from  a  charge  to  which  he  has  been 
appointed  by  the  bishop,  and  appoint  him  to  another  to  which  he 
could  not  be  legally  appointed  by  the  bishop.  The  same  limita- 
tion applies  also  to  superannuated  and  local  preachers,  who  are 
employed  in  the  work. 

A  very  important  question  arises  on  section  second  of  ^  163 
of  the  Discipline,  where  it  speaks  of  the  exercise  of  the  enu- 
merated powers  of  the  presiding  elder  in  the  absence  of  a  bishop. 
In  what  sense  must  the  bishop  be  absent,  in  order  to  the  exercise, 
or  the  rightful  exercise,  of  these  powers  by  the  presiding  elder  ? 
Must  the  bishop  be  absent  from  the  territorial  limits  assigned  to 


60  ECCLESIASTICAL  LAW. 


the  presiding  elder,  or  is  it  sufficient  that  the  bishop  be  absent 
at  the  time  of  the  exercise  of  the  powers  conferred  conditionally  ? 
We  are  inclined,  in  looking  carefully  through  that  portion  of  the 
Discipline  prescribing  the  powers  and  duties  of  a  presiding  elder, 
to  the  opinion  that  the  term  absent  has  reference  to  absence  from 
his  district.  The  term  absent  occurs  in  several  places  in  this 
chapter  of  the  Discipline ;  and  it  seems,  when  used,  to  be  used 
in  a  restricted  sense ;  besides,  this  construction  is  better  adapted 
to  the  local  wants  of  the  district. 

The  presiding  elder  has  authority  to  decide  all  questions  of  law 
involved  in  proceedings  pending  in  a  district  or  quarterly  confer- 
ence, subject  to  an  appeal  to  the  president  of  the  next  annual  con- 
ference. By  this,  we  do  not  understand  that  the  decision  of  the 
presiding  elder  can  be  reviewed  in  the  interval  of  the  annual 
conference,  nor  by  the  President  of  the  annual  conference,  unless 
the  decision  of  the  quarterly  conference  is  regularly  brought,  by 
appeal,  from  the  quarterly  conference  to  the  annual  conference  ; 
in  other  words,  the  decision  of  a  presiding  elder,  made  in  a 
quarterly  conference,  can  not  be  decided  by  the  President  of  an 
annual  conference,  as  a  mere  abstract  question  of  law ;  but  the 
decision  must  be  regularly  obtained  in  order  to  make  it  any  thing 
more  than  a  mere  obiter  dictum,  or  loose  saying,^  in  connection 
with  a  cause  actually  on  hearing,  before  the  conference,  in  due 
course  of  disciplinary  administration. 

^  Obiter  dicta,  in  practice,  are  judicial  opinions  expressed  by  the  judges  on 
points  tiiat  do  not  necessarily  arise  in  the  case. 

Dicta  are  regarded  as  of  little  authority,  on  account  of  the  manner  in 
which  they  are  delivered;  it  frequently  happening  that  they  are  given  without 
much  reflection,  at  the  bar, — without  previous  examination,  "If,"  says  Huston, 
■J.,  in  Fauts  v.  Brown,  17  Serg.  and  Rawle,  292,  "general  dicta  in  cases  turning 
on  special  circumstances  are  to  be  considered  as  establishing  the  law,  nothing  is 
yet  settled,  or  can  long  be  settled."  "What  I  have  said,  or  written  out  of  the 
case  trying,"  continues  the  learned  judge,  "  or  shall  say  or  write  under  such  cir- 
cumstances, may  be  taken  as  my  opinion  at  the  time,  without  argument  or  full 
consideration;  but  I  will  never  consider  myself  bound  by  it  when  the  point  is 
fairly  trying,  and  fully  argued  and  considered.  And  I  protest  against  any 
person  considering  such  obiter  dicta  as  my  delil)orate  opinion."  And  it  was 
considered  by  another  learned  judge,  Mr.  Baron  Richards,  to  be  a  "great  mis- 
fortune that  dicta  are  taken  down  from  the  judges,  perhaps  incorrectly,  and  then 
cited  as  absolute  propositions."  1  Eng.  Ecc.  R.  12!);  Ram  on  judgments,  Ch.  5, 
36  ;  2  Ring.  90.  In  the  Fretich  law,  the  report  of  a  judgment  made  by  one  of  the 
judges  who  has  given  it  is  called  the  dictum.    Path.  Prac.  Civ.  partie,  c.  5,  Art.  2. 


THE  JUDICIAL  POWERS  OF  MINISTERS  IN  CHARGE.  61 

It  is  tlie  duty  of  the  presiding  elder,  in  the  absence  of  a 
bishop,  as  we  have  previously  shown,  Avhere  a  traveling  elder, 
deacon,  or  preacher  is  accused  of  a  crime,  to  assemble  a  com- 
mittee for  the  investigation  of  such  accusation,  and  to  preside  at 
the  trial ;  and  to  decide  all  preliminary  questions,  and  questions 
of  law,  that  may  arise  during  the  progress  of  such  investigation  ; 
it  is  also  his  duty,  in  the  absence  of  a  bishop,  to  preside  in  the 
district  conference ;  and  that  conference  has  authoiity  conferred 
on  it,  as  has  been  before  shown,  to  hear  complaints  against  local 
preachers,  to  try,  suspend,  deprive  of  ministerial  office  and 
credentials,  expel  or  acquit,  any  local  preacher  against  whom 
charges  may  be  preferred.  And,  finally,  the  Discipline  makes 
it  the  duty  of  the  presiding  elder  to  preside  in  the  quarterly  con- 
ference, in  case  of  a  trial,  or  where  an  appeal  has  been  taken  by 
a  member  of  the  Church  to  that  conference ;  and  in  case  of  an 
appeal  to  grant,  or  order,  a  change  of  venue,  where,  in  his  judg- 
ment, because  of  local  prejudice,  an  impartial  trial  can  not  be 
had  in  the  quarterly  conference  of  the  circuit,  or  station,  where 
the  appellant  resides. 

CHAPTER  VIII. 

THE  JUDICIAL  POWERS  OF  MINISTERS  IN  CHARGE. 

The  Discipline  makes  it  the  duty  of  a  preacher  in  charge  of 
a  circuit  or  station,  where  a  member  of  the  Church  belonging  to 
such  circuit  or  station  is  accused  of  immoral  conduct,  to  bring 
such  accused  member  to  trial  before  a  committee  of  not  less  than 
five,  who  shall  not  be  members  of  the  quarterly  conference  ;  and 
upon  such  trial,  it  is  made  the  duty  of  the  pi'eacher  in  charge  to 
preside,  and  to  decide  all  preliminary  questions,  and  questions  of 
law,  that  may  arise  during  the  progress  of  the  trial.  And  if  the 
accused  is  found  guilty  of  a  crime  expressly  forbidden  in  the 
Word  of  God,  then  to  pronounce  such  member  expelled  from  the 
Church,  Avhere  such  is  the  sentence  pronounced  by  the  committee. 

While  the  duties  of  a  preacher  in  charge  of  a  circuit  or  station 
are  of  the  most  sacred  and  delicate  nature,  including  baptism,  the 
administration  of  the  Lord's-supper,  attending  in  cases  of  sickness, 
marriages,  and  deaths,  he  has  no  other  judicial  powers  than  the 
one  above  referred  to,  except  when  presiding  in  a  quarterly  confer- 
ence in  the  absence  of  the  presiding  elder.  In  the  administration  of 


62  ECCLESIASTICAL  LAW. 

the  Discipline,  all  tlie  other  powers,  either  expressly  or  incident- 
ally granted,  or  with  which  he  is  clothed  by  the  Discipline,  or 
by  the  usages  of  the  Church,  are  of  a  mere  ministerial  char- 
acter. This  reference  to  the  distribution  of  the  authority  of 
the  Church,  in  administration  of  disciplinary  power,  includes 
all  the  authority  of  a  judicial  character  that  is  provided  for 
in  the  Discipline. 

Having  ascertained  the  different  tribunals  of  the  Church, 
and  the  scope  and  limits  of  their  powers,  we  propose  next  to 
consider,  in  their  proper  order,  a  trial  before  these  different 
tribunals,  marking  carefully  the  different  forms  of  procedure 
before  eacli. 

CHAPTER  IX. 

THE   TEIAL    OF  A   BISHOP. 

The  Discipline  provides  that  a  bishop  is  answerable  for  his 
conduct  to  the  General  Conference,  which  shall  have  power  to 
order  the  manner  of  his  trial.  What,  we  apprehend,  is  here 
meant  is,  that  the  Greneral  Conference  may  provide  by  law  for 
the  manner  of  bringing  an  accused  bishop  to  trial.  Not  that 
they  may  arraign  and  try  him  without  any  previous  rules  or  regu- 
lations governing  the  conduct  and  management  of  such  trial ;  for 
it  would  be  highly  prejudicial,  and  unjust,  to  leave  the  trial  of  a 
bishop  to  the  arbiti'ary  discretion  of  the  tribunal  before  which  he 
is  to  bo  tried,  or  to  blend  the  trial  and  the  making  of  rules  and 
regulations  for  the  government  of  the  trial,  into  one  proceeding. 
The  provision  contained,  as  we  have  previously  seen,  in  the  Con- 
stitution of  tlie  United  States,  and  of  almost  every  State  in  the 
Union,  is  to  the  effect  that  no  ex  post  facto  law  shall  be  passed. 
And  while  it  may  be  true,  tiiat  this  provision  is  not  absolutely 
binding  upon  the  General  Conference,  the  analogies  and  reasons 
of  the  rule  are  so  apparent  that  its  justice  will  not  be  questioned 
anywhere.  It  has  never  been  held,  that  the  Legislatures,  under 
this  provision  of  the  Constitution,  were  prohibited  from  changing 
the  law  with  reference  to  the  conduct,  management,  and  practice 
governing  criminal  trials,  after  the  offense  has  been  committed  ; 
yet  there  is  great  propriety  in  trying  an  accused  party  by  the 
law  that  is  in  force  at  the  time  when  the  crime  is  committed  ; 


THE  TRIAL  OF  A  BISHOP.  63 

for  if  we  concede  the  right  to  make  a  change  in  regard  to  the  hiw 
of  the  right  and  the  law  of  the  remedy,  it  often  becomes  difficult 
to  determine  between  the  one  and  the  other.  We  have  referred 
briefly  to  this  question,  because  of  the  meagre  provisions  con- 
tained in  the  Discipline  for  the  trial  of  an  accused  bishop. 

As  the  Discipline  now  stands,  the  appeal  of  a  bishop  accused 
of  immorality  would  have  to  be  tried  in  open  conference,  before 
the  entire  body,  for  there  is  no  provision  contained  in  the  Disci- 
pline authorizing  a  bishop  to  be  tried  by  a  select  number,  or  a 
committee.^ 

What  we  have  said  under  the  head  of  judicial  powers  of  an- 
nual conferences  is  here  applicable,  except  that  the  powers  of 
the  General  Conference  are  not  restricted  and  limited  to  the 
same  extent  that  the  powers  of  an  annual  conference  are,  but 
neither  conference  possesses  the  authority  of  referring  the  exer- 
cise of  a  power  conferred  by  the  Discipline  upon  the  conference, 
to  a  select  number  in  the  absence  of  an  express  provision  of  the 
Discipline. 

Where  a  bishop  is  accused  of  immoral  conduct,  the  Discipline 
provides  that  the  presiding  elder,  within  whose  district  such 
immorality  is  alleged  to  have  been  committed,  shall  call  to  his 
aid  four  traveling  elders,  and  that  he  and  they  shall  carefully 
inquire  into  the  case  ;   and,  that  if  upon  such  investigation,   in 


^  It  is  a  familiar  proposition,  that  what  one  does  by  another  he  does  by  him- 
self; and  it  need  not  be  stated  that  a  man  may  authorize  another  to  do  for  him 
whatever  he  may  lawfully  do  for  himself;  but  this  is  only  true  as  a  general 
proposition,  when  the  agent  appointed  may  himself  execute  the  powers  con- 
ferred. If  the  performance  of  the  trust,  or  execution  of  the  powers,  involves 
the  employment  of  another  agency  not  having  the  capacity  for  its  execution, 
the  power  itself  can  not  be  effective.  In  any  proper  form,  one  may  delegate  to 
another  complete  authority  to  regulate,  control,  dispose  of,  receive  and  receipt 
for  his  property  of  whatever  description  ;  but  he  can  not  by  any  form  of  com- 
mission, whatever  the  powers  of  the  agent  may  be,  confer  upon  a  justice  of  the 
peace,  or  other  court  of  limited  jurisdiction,  a  power  not  conferred  by  the  statute. 
Whilst  any  competent  person  may,  by  his  own  act,  or  contract,  dispose  of  his 
rights  and  property  at  his  discretion,  yet  they  can  not  be  disposed  of  by  the 
judgment  of  a  court  having  no  jurisdiction  over  the  subject.  And  when  a  gen- 
eral jurisdiction  of  the  subject-matter  exists,  but  the  statute  has  prescribed  the 
mode  and  particular  limits  in  which  it  may  be  exercised,  it  must  be  confined  to 
the  limits  thus  prescribed,  and  can  not  be  exercised  in  any  other  manner,  nor 
upon  any  other  terms.     M'  Ceary  v.  M' Lain,  2  Ohio  State,  369. 


64  ECCLESIASTICAL  LAW. 

their  judgment,  there  is  reasonable  ground  for  such  accusation, 
they,  or  a  majority  of  them,  shall  prepare  and  sign  the  proper 
charge  or  charges  in  the  case,  and  shall  send  a  copy  thereof,  so 
signed,  to  the  accused,  and  give  notice  thereof  to  one  of  the 
bishops  ;  and  that  the  bishop  so  notified  shall  convene  a  judicial 
conference,  to  be  composed  of  the  triers  of  appeals  in  the  five 
neighboring  conferences;  and  that  such  judicial  conference  shall 
have  full  power  to  try  the  accused  bishop,  and  to  suspend  him 
from  the  functions  of  his  office  or  expel  him  from  the  Church,  as 
they  may  deem  his  offense  requires. 

The  judicial  conference,  provided  for  by  the  Discipline,  for 
the  trial  of  an  accused  bishop,  is  composed  of  the  triers  of  ap- 
peals, chosen  by  the  annual  conferences ;  but  instead  of  the  triers 
of  appeals  from  three  annual  conferences,  the  Discipline  requires 
that  they  be  taken  from  five,  thereby  increasing  the  number  from 
twenty-one  to  thirty-five  and  instead  of  exercising  an  appellate 
jurisdiction  to  review  the  decision  of  some  other  inferior  or  sub- 
ordinate tribunal,  they  exercise  an  original  jurisdiction  conferred 
upon  them  by  the  Discipline,  and  by  the  charges  prepared  and 
signed  by  the  presiding  elder's  committee.  If  proper  charges 
are  not  made  out  and  signed  by  a  majority  of  the  committee, 
then  the  bishop  has  no  authority  to  convene  a  judicial  con- 
ference;  and  the  judicial  conference  has  no  authority  to  try 
the  accused  bishop.  Mere  irregularity  in  the  proceeding  w^ould 
not  have  the  eff'ect,  however,  to  render  the  whole  proceeding 
coram  non  judlce,  or  void.  Before  such  a  result  would  follow, 
there  must  be  a  substantial  failure  on  the  part  of  the  presiding 
elder's  committee  to  comply  wltli  the  Discipline. 

When  the  judicial  conference  is  assembled,  or  convened  in 
session,  it  is  made  the  duty  of  one  of  the  bishops  to  preside  at 
the  trial ;  and  the  accused  has  the  right,  before  proceeding  to 
trial,  to  a  peremptory  challenge  of  the  triers  of  appeal;  yet  not  so 
as  to  reduce  the  number  of  the  judicial  conference  below  twenty- 
one.  This  challenge  should  be  regularly  made  at  the  time  the 
judicial  conference  is  being  organized ;  for  if  it  is  not  then 
made,  it  will  be  considered  as  waived  ;  and  after  the  trial  has 
commenced  it  will  be  too  late  to  insist  upon  it.  The  challenge 
can  not  be  exercised  so  as  to  reduce  the  number  present  below 
twenty  one  ;  for  that  number  is  required  in  order  to  constitute  the 


THE  TRIAL  OF  A  BISHOP.  65 

judicial  conference.  Neither,  in  strictness,  can  a  member  of  such 
judicial  conference,  who  was  not  present  at  the  organization  of 
the  conference,  take  his  seat  without  the  consent  of  both  parties. 
The  Discipline  is  silent  in  regard  to  the  right  of  the  prosecution 
to  challenge  the  trier,  or  triers,  of  appeals,  either  peremptorily 
or  for  cause  ;  but  we  presunie  that  if  a  trier  of  appeals  was  lor 
any  cause  legally  incapacitated,  and  unfit  to  sit  as  one  of  the 
judges,  because  of  relationship,  or  because  he  had  formed  and 
expressed  an  opinion,  and  was  so  prejudiced  that  he  could  not 
render  a  fair  and  impartial  decision,  he  might  be  set  aside  upon 
the  challenge  of  the  prosecution.  When  a  challenge  is  interposed, 
and  there  is  any  question  in  regard  to  the  right  to  make  the  chal- 
lenge, or  to  the  time  in  which  the  challenge  shall  be  interposed, 
it  is  tlie  duty  of  the  presiding  bishop  to  decide  the  question. 

There  is  no  provision  in  the  Discipline  expressly  empowering 
any  one,  as  in  the  case  of  other  judicial  conferences,  to  fix  the 
time  and  place  of  the  trial ;  yet  we  think  it  is  e^ndent  that  this 
is  the  duty  of  the  bishop  empowered  to  convene  the  judicial  con- 
ference. He  must  of  necessity  be  clothed  with  this  power,  and 
also  the  authority  of  determining  the  annual  conferences  from 
which  the  triers  of  appeals  shall  be  taken.  It  will  be  observed 
that  the  trial  authorized  by  the  Discipline  confines  the  investiga- 
tion to  the  charge  of  immorality.  That  term,  as  used  in  the 
Discipline,  has  a  generic  meaning,  and  includes  any  act  which 
is  inconsistent  with  moral  rectitude,  contrary  to  tlie  moral 
or  divine  law,  wicked,  unjust,  dishonest,  or  vicious;  but  it  is  not 
so  used  as  to  include  imprudent  conduct ;  as  is  evident  from  the 
further  provision  contained  in  the  Discipline,  by  which  if  a 
bishop  is  charged  with  imprudent  conduct,  a  presiding  elder  shall 
take  with  him  two  traveling  elders,  and  sliall  admonish  the  bishop 
so  offending.  In  case  of  a  second  offense,  one  of  the  bishops, 
together  with  three  traveling  elders,  shall  call  upon  him,  and 
reprehend  and  admonish  him;  and  if  he  still  persists  in  his  im- 
prudence, he  shall  be  tried  in  the  same  manner  as  tl)ough  he  had 
been  guilty  of  immoral  conduct,  that  is,  the  presiding  elder  of 
the  district  where  such  imprudent  conduct  is  charged  to  have 
taken  place,  together  with  four  traveling  elders,  shall  prefer 
charges  against  him  in  accordance  with  the  provisions  of  ^  198 
of  the  Discipline. 


QG  ECCLESIASTICAL  LAW. 


This  provision,  contained  in  ^  200  of  the  Discipline,  is  pre- 
liminary and  jurisdictional,  without  which  the  bishop  ought  not 
to  be  arraigned  and  put  upon  his  trial.  Whether  it  is  necessary 
to  recite  in  the  charges  and  specifications  that  these  preliminary 
steps  have  been  taken,  or  Avhether  it  will  be  presumed  that  such 
proceedings  as  were  requisite  to  confer  jurisdiction  upon  the  judi- 
cial conference  were  had,  or  whether  the  jurisdiction  will  be  pre- 
sumed, and  the  burden  devolved  upon  the  defendant  to  show  that 
the  Discipline  has  not  been  complied  with,  we  shall  not  attempt  to 
determine.  It  is  nevertheless  evident  that  a  charge  of  imprudent 
conduct,  with  only  a  single  specification,  would  not  be  sufficient, 
as  the  bishop  is  only  liable  to  be  dealt  with  canonically  for 
the  third  offense ;  and  at  least  three  or  more  offenses,  charging 
imprudent  conduct,  should  be  regularly  alleged  in  the  complaint, 
and  not  only  alleged,  but  the  evidence  must  be  sufficient  to 
establisli  three  different  acts  of  imprudence,  before  the  accused 
bishop  is  liable  to  be  dealt  with  in  accordance  with  the  provisions 
of  ^  198  and  ^  199. 

There  is  no  provision  requiring  a  judicial  conference  to  pre- 
serve the  evidence  upon  which  its  findings  are  based.  Such  con- 
ference proceeds  in  the  same  manner  as  any  other  Church  tribu- 
nal, in  the  investigation  of  the  facts,  except  that  they  are  not 
required  by  the  Discipline  to  reduce  the  evidence  taken  by  them 
to  writing,  and  to  deliver  it  to  the  appellate  conference.  And  in 
case  of  an  appeal  to  the  ensuing  General  Conference,  the  trial 
before  the  General  Conference  is  a  trial  de  novo,  and  neither 
party  has  the  right,  under  the  Discipline,  to  use  the  evidence 
taken  before  the  judicial  conference,  even  if  preserved  and  au- 
thenticated ;  it  could  only  be  used  by  consent  of  parties. 

Another  important  question  to  be  considered  in  this  connec- 
tion is  as  to  the  effect  of  an  acquittal  of  a  bishop  before  the 
judicial  conference,  upon  the  right  of  tiie  General  Conference  to 
investigate  the  charges  over  anew.  If  such  investigation,  or 
trial,  is  to  be  regarded  as  a  trial,  in  the  legal  import  of  the  term, 
then  the  prosecution  ought  to  be  barred.  But  we  will  consider 
thq,t  question  under  another  head.  By  the  provisions  of  ^  202  of 
the  Discipline,  complaints  against  the  administi'ation  of  a  bishop 
may  be  forwarded,  or  made  to  the  General  Conference,  and 
entertained  by  the  General  Conference,  provided  due  notice  has 


PROCEEDINGS  AGAINST  TRAVELING  MINISTERS.  G7 

been  given  the  bishop  complained  of.  Under  these  provisions 
of  the  Discipline,  there  is  but  one  mode  prescribed  by  which  a 
bishop  can  be  dealt  with  canonically  for  inefficiency,  or  for  dis- 
seminating doctrines  that  are  contrary  to  the  Articles  of  Religion 
contained  in  the  Discipline,  that  is,  by  bringing  the  matter 
directly  before  the  General  Conference  to  which  he  is  amenable, 
and  which  has  power  not  only  to  order  the  manner  of  his  trial, 
but  to  determine  the  character  of  the  sentence  to  be  pronounced 
in  case  he  is  adjudged  guilty. 


CHAPTER  X. 

PROCEEDINGS  AGAINST  TRAVELING  MINISTERS. 

The  Discipline  provides  that  when  an  elder,  deacon,  or 
preacher  is  accused  of  being  guilty  of  a  crime,  or  offense,  ex- 
pressly forbidden  in  the  Word  of  God,  sufficient  to  exclude  a 
person  from  the  kingdom  of  grace  and  glory,  in  the  interval  of 
the  annual  conference,  that  the  presiding  elder,  in  the  abserrce  of 
a  bishop,  shall  call  as  many  traveling  ministers  as  he  shall  think 
proper,  so  that  the  number  summoned  is  not  less  than  five,  and  if 
possible  bring  the  accused  and  the  accuser  face  to  face,  and  upon 
the  investigation,  cause  a  correct  record  of  such  investigation  to 
be  made  and  transmitted  to  the  annual  conference.  If  upon  the 
hearing  of  all  the  proofs  and  allegations  of  both  parties,  such 
minister  be  cleai'ly  convicted,  it  shall  be  the  duty  of  the  commit- 
tee to  suspend  him  from  all  ministerial  service,  and  Church 
privileges,  until  the  next  ensuing  annual  conference,  at  which 
his  case  shall  be  fully  considered  and  determined.  Where  the 
accused  is  a  presiding  elder,  it  is  made  the  duty  of  three  of  the 
senior  preachers  of  his  district  to  inquire  into  the  character  of 
the  report,  and  if  they  deem  it  advisable,  such  senior  preachers 
have  the  right  to  call  the  presiding  elder  of  any  adjoining  district ; 
such  presiding  elder,  when  so  called,  shall  appoint  a  committee 
of  five  elders  from  within  the  bounds  of  the  annual  conference 
of  which  the  accused  is  a  member,  and  it  is  made  his  duty 
to  preside  at  the  examination,  which  examination  should  not 
take  place  until  the  accused  has  been  duly  notified  of  the  ap- 
pointment of   the  committee,  and  of  the  time  and  place  fixed 


ECCLESIASTICAL  LAW. 


for  hearing.  The  accused,  whether  a  traveling  minister  or  pre- 
siding elder,  should  .-ilso  l)e  served  with  a  copy  of  the  charges 
and  specifications  preferred  against  him,  if  possible  or  practica- 
ble ;  so  that  he  may  have  every  opportunity  of  making  his 
defense,  and  vindicating  his  character  and  reputation.  This 
proceeding  is  summary,  yet.  notwithstanding  this  fact,  it  should 
be  so  managed,  if  practicable,  that  the  accuser  and  the  accused 
should  be  both  present,  and  brought  face  to  face;  for  there  is  a 
better  opportunity  of  investigating  facts,  where  the  witnesses 
confront  the  accused ;  but  if  the  accused  flees  or  refuses  to  attend, 
the  trial,  after  being  duly  notified,  his  failure  to  obey  the  order  of 
the  Church  tribunal  shall  be  received  a?,  2)rima  facie  evidence  of 
his  guilt.  There  has  always  been  a  distinction  between  the  rules 
of  evidence  in  our  civil  cov^rts  and  in  ecclesiastical  courts.  One 
credible  witness,  in  our  common-law  courts,  has  always  been  held 
sufficient  to  justify  a  conviction,  even  for  the  gravest  crimes 
known  to  the  law,  except  in  cases  of  treason  and  perjury.  The 
Discipline,  however,  while  speaking  of  this  preliminary  investi- 
gation, provides  that  out  of  the  mouth  of  two  or  three  witnesses 
he  shall  be  condemned ;  not,  finally,  even  then,  until  the  case  has 
been  considered  and  passed  upon  by  the  annual  conference,  which 
has  original  jurisdiction  of  the  traveling  minister  or  preacher. 
This  examination,  provided  for  in  the  interval  of  the  annual 
conference,  is  only  a  preliminary  one,  and  determines  but  one 
question,  in  the  event  of  the  accused  being  found  guilty,  and 
that  is,  that  the  minister  should  be  suspended  from  all  minis- 
terial service  and  Church  privileges,  until  the  ensuing  annual 
conference. 

There  are  several  other  preliminary  investigations  provided 
for  by  the  Discipline,  to  which  we  will  briefly  refer  in  their  order: 

First.  If  charges  be  preferred  against  a  minister  at  an  annual 
conference,  the  case  may  be  referred  to  a  committee,  to  be  inves- 
tigated in  the  presence  of  a  presiding  elder,  or  other  member  of 
the  conference,  appointed  hy  the  bishop  in  his  stead  ;  such  com- 
mittee to  cause  a  faithful  record  of  the  proceedings  to  be  laid 
before  the  conference,  on  which,  with  such  other  evidence  as  may 
1)0  introduced  and  admitted  on  either  side,  by  the  conference,  the 
case  shall  be  decided.  This  provision  of  the  Discipline,  author- 
izing the  appointment  of  such  a  committee,  does  not  invest  the 


PROCEEDINGS  AGAINST  TRAVELING  MINISTERS.  OH 

committee  with  any  tiling  beyond  the  mere  ministerial  duty  of 
taking  and  reporting  the  evidence.  They  have  no  authority  to 
decide  on  any  question,  except  it  may  be  on  the  question  of  the 
admissibility  of  evidence.  Their  powers  are  not  unlike  the  power 
conferred,  under  an  order  of  reference,  by  a  court  to  a  master  or 
other  commissioner,  to  take  and  report  testimony.  The  commit- 
tee makes  no  report,  further  than  the  simple  reporting  of  the 
evidence.  They  are  not  authorized  and  empowered,  by  the 
Discipline,  to  draw  any  conclusions  from  the  testimony  thus  in- 
troduced. When  the  case  can  not  be  tried  during  the  session  of 
the  conference  for  want  of  testimony,  it  may  be  referred  to  the 
presiding  eider  having  charge  of  the  preacher  complained  of, 
who  shall  proceed  as  directed  in  ^  203,  §§1,  2,  3. 

Second.  Another  preliminary  proceeding,  authorized  by  the 
Discipline,  is  in  case  -where  a  traveling  minister  or  preacher  is 
guilty  of  improper  temper,  words,  or  actions.  The  person  so 
offending  shall  be  reprehended  by  a  senior  in  office.  Should  he 
be  guilty  of  transgressing  a  second  time,  the  presiding  elder  is 
authorized  to  take  one,  two,  or  three  preachers  to  witness  his 
being  reprehended  the  second  time.  And  if  such  preacher  still 
pei'sists  in  a  repetition  of  such  offense,  then  the  presiding  elder 
should  proceed  to  investigate  the  case,  as  directed  in  sections  one 
and  two  of  ^  203. 

Third.  Under  ^  206  of  the  Discipline,  where  a  member  of 
an  annual  conference  fails  in  business,  or  contracts  debts  which 
he  is  not  able  to  pay,  the  presiding  elder  should  appoint  three 
judicious  members  of  the  Church  to  inspect  the  accounts  and 
circumstances  of  the  supposed  delinquent ;  and  where,  upon  such 
examination  and  investigation,  it  is  tlie  opinion  of  the  members 
thus  selected  that  the  traveling  preacher  has  behaved  dishonestly, 
or  contracted  debts  without  the  probability  of  paying,  he  should 
be  subjected  to  the  preliminary  proceedings  directed  by  sections 
one  and  two  of  ^  203.  Again,  ^  207  of  the  Discipline,  provides 
that  when  a  minister  or  preacher  holds,  and  disseminates  publicly 
or  privately,  doctrines  which  are  contrary  to  the  Articles  of  Re- 
ligion of  the  Methodist  Episcopal  Church,  and  will  not  solemnly 
promise  to  abstain  from  disseminating  such  erroneous  doctrines, 
in  public  and  private,  he  shall  be  dealt  with  preliminarily  as  when 
guilty  of  gross  immorality.     Yet,  notwithstanding  his  promise 


70  ECCLESIASTICAL  LAW. 

not  to  disseminate  such  erroneous  doctrines,  he  is  still  liable  to 
be  dealt  with  canonically  before  the  annual  conference. 

When  a  traveling  preacher,  in  the  interim  of  an  annual 
conference,  refuses  to  attend  to  the  work  assigned  to  hira,  the 
presiding  elder  of  the  district  where  the  work  is  situated,  should 
proceed  to  investigate  the  matter,  as  directed  in  sections  one  and 
two  of  ^  203  of  the  Discipline.  These  embrace  all  of  the  causes 
that  may  be  investigated  out  of  the  annual  conference,  prelimin- 
arily, where  the  offenses  have  arisen  since  the  meeting  of  the 
last  annual  conference  or  are  investigated  by  its  order. 

The  annual  conference  or  a  committee  or  select  number  only 
have  authority  to  try  an  accused  elder,  deacon,  or  preacher, 
where  such  elder,  deacon,  or  preacher  is  charged  with  being 
guilty  of  some  crime  or  offense  against  the  canons  of  the  Church. 
Before  a  member  of  the  annual  conference  is  required  to  answer 
for  an  offense,  regular  charges  should  be  made  out  against  him, 
and  such  accused  member  should  be  served,  if  practicable,  with 
a  copy  thereof,  unless  there  has  been  preliminary  proceedings 
instituted  against  him  in  accordance  with  ^  203  of  the  Discipline 
for  his  arraignment  before  the  presiding  elder's  committee  and 
the  record  and  proceedings  of  investigation  are  required  to  be 
kept  and  transmitted  to  the  annual  conference,  and  may  be  used 
either  against  him  or  in  his  favor.  The  findings,  hoAvever,  of 
the  committee  selected  to  inquire  into  the  offense,  is  not  evidence 
either  for  or  against  the  accused.  There  would  be  great  impro- 
priety in  a  trial  before  the  annual  conference  in  receiving  in  evi- 
dence or  giving  weight  to  the  decision  of  the  committee,  for  by 
the  express  provisions  of  the  Discipline  the  inquiry  of  the  com- 
mittee is  restricted  to  the  question  as  to  whether  the  minister 
accused  shall  be  suspended  from  all  ministerial  services  and 
Church  privileges  until  the  ensuing  annual  conference.  Besides 
the  conference  or  the  conference  committee  ought  to  decide  the 
question  upon  the  evidence  for  themselves  independent  of  all 
extraneous  considerations. 

The  effect  to  be  given  to  the  findings  of  the  committee  appointed 
by  a  presiding  elder  in  the  annual  conference  in  case  the  accused 
is  acquitted  by  the  conmiittee  is  nowhere  determinable  by  the 
Discipline;  but  from  the  character  of  the  investigation,  and  from 
the  analogies  to  be  drawn  from  our  civil  law,  we  judge  that  the 


PROCEEDINGS  AGAINST  TRAVELING  MINISTERS.  71 

acquittal  is  not  conclusive,  and  does  not  operate  by  way  of  estop- 
pel to  preclude  a  further  investigation  or  trial,  but  that,  notwith- 
standing such  acquittal,  the  facts  of  the  case  may  be  investigated 
again  de  novo,  the  same  as  though  no  preliminary  proceedings 
had  taken  place,  and  no  determination  reached  by  the  com- 
mittee, subject  to  this  qualification,  that  to  investigate  the  cause 
again  is  not  a  mandatory  duty  upon  the  conference  as  it  would  be 
in  case  of  a  conviction  and  suspension.  Section  2  of  ^  203  pro- 
vides for  bringing,  if  practicable,  the  accusers  and  the  accused 
face  to  face,  as  we  have  before  mentioned,  as  in  case  of  an  indict- 
ment, where  the  defendant  is  accused  of  the  commission  of  the 
crime  of  treason  or  felony.  And  the  same  paragraph  indicates 
that  a  conviction  should  not  be  based  upon  the  testimony  of  a  sin- 
gle witness;  but  out  of  tlie  mouth  of  two  or  more  witnesses  he  shall 
be  condemned,  whether  it  would  be  sufficient  under  this  provision 
to  base  a  conviction  upon  the  testimony  of  one  witness  and  corrob- 
orating circumstances  is  not  determinable  from  the  language  of 
the  Discipline.  We  presume,  however,  that  an  accused  travel- 
ing minister  or  preacher  might  be  convicted  upon  circumstantial 
evidence^  the  same  as  a  party  may  be  convicted  by  circumstan- 

^  The  distinction  between  direct  and  circumstantial  evidence  is  this,  Direct 
or  positive  evidence  is  when  a  witness  can  be  called  to  testify  to  the  precise 
fact,  which  is  the  subject  of  the  issue  on  trial;  that  is,  in  a  case  of  homicide, 
that  the  party  accused  did  cause  the  death  of  the  deceased.  Whatever  may  be 
the  kind  or  force  of  the  evidence,  this  is  the  fact  to  be  proved.  But  suppose  no 
person  was  present  on  the  occasion  of  the  deatli,  and,  of  course  no  one  can  be 
called  to  testify  to  it,  is  it  wholly  unsusceptible  of  legal  proof?  Experience  has 
shown  that  circumstantial  evidence  may  be  offered  in  such  a  case;  that  is,  that 
a  body  of  facts  may  be  proved  of  so  conclusive  a  character  as  to  warrant  a  firm 
belief  of  the  fact,  quite  as  strong  and  certain  as  that  on  which  discreet  men  are 
accustomed  to  act  in  relation  to  their  most  important  concerns.  It  would  be 
injurious  to  the  best  interests  of  society,  if  such  proof  could  not  avail  in  judicial 
proceedings.  If  it  were  necessary  always  to  have  positive  evidence,  how  many 
criminal  acts  committed  in  the  community  destructive  of  its  peace  and  subvers- 
ive of  its   order  and  security  would  go  wholly  undetected  and  unpunished. 

The  necessity,  therefore,  of  resorting  to  circumstantial  evidence,  if  it  is  a 
safe  and  reliable  proceeding,  is  obvious  and  absolute.  Crimes  are  secret. 
Most  men,  conscious  of  criminal  purposes,  and  about  the  execution  of  criminal 
acts,  seek  the  security  of  secrecy  and  darkness;  it  is  therefore  necessary  to  use 
all  other  modes  of  evidence  besides  that  of  direct  testimony,  provided  such 
proof  may  be  relied  on  as  leading  to  safe  and  satisfactory  conclusions;  and, 
thanks  to  a  benevolent  providence,  the  laws  of  nature,  and  the  relation  of 


72  ECCLESIASTICAL  LAW. 

tial  evidence  in  our  civil  courts ;  and  that  the  meaning  of  the 
Discipline  is  this,  that  the  weight  of  evidence  should  be  equiv- 
alent to  the  testimony  of  two  or  more  credible  witnesses.  The 
Discipline,  in  requiring  this  amount  of  evidence,  takes  into  con- 
sideration the  position  of  the  accused ;  the  improbability  of  one 
occupying  so  exalted  a  position  plunging  into  crime ;  the  several 
degrees  of  probation  and  trial  that  are  necessary  to  be  passed 
through  before  he  can  become  a  member  of  the  annual  confer- 
ence ;  the  yearly  examination  of  character,  and  in  view  of  the 
jealous  watchfidness  of  the  Church,'  before  he  can  be  admitted 
into  full  fellowship  with  the  Church ;  and  putting  these  facts  into 
the  opposite  side  of  the  scale,  they  are  sufficient  to  overcome  the 
uncori'oborated  testimony  of  a  single  witness.  Even  in  our  civil 
courts,  where  a  party  is  accused  of  an  offense,  the  law  receives 
evidence  of  the  previous  good  character  of  the  accused,  as  far  as 
the  alleged  offense  is  concerned ;  and,  in  some  States,  the  question 
of  character  is  not  restricted,  but  the  inquiry  may  be  general; 
for  it  reasons,  and  reasons  correctly,  that  a  man  who  has  been 
careful  to  build  up  and  establish  a  fair  reputation  among  his 
neighbors,  friends,  and  acquaintances,  would  not  be  likely  to 
cast  it  aside  and  to  engage  in  the  commission  of  crime.  ^ 

thinnrs  to  etich  otlier  are  so  linked  and  combined  together,  that  a  medium 
of  proof  is  often  thereby  furnished,  leading  to  inferences  and  conclusions  as 
strong  as  those  arising  from  direct  testimony.  Cummonivealth  v.  Webster, 
5  Gushing,  :U1. 

^  Parson,  C.  J.,  said  that  he  was  of  the  opinion  that  a  prisoner  ought  to  be 
permitted  to  give,  in  evidence,  his  general  character  in  all  cases ;  for  he  did  not 
see  why  it  should  be  evidence  in  a  capital  case,  and  not  in  cases  of  an  inferior 
degree.  In  doubtful  cases  a  good  general  character,  clearly  established,  ought 
to  have  weight  with  a  jury;  but  it  ought  not  to  prevail  against  the  positive  testi- 
mony of  credible  witnesses.  Whenever  the  defendant  chooses  to  call  witnesses 
to  prove  his  general  character  to  be  good,  the  prosecutor  may  offer  witnesses  to 
disprove  their  testimony ;  but  it  is  not  competent  for  the  prosecutor  to  go  into 
this  inquiry  until  the  defendant  has  voluntarily  put  his  character  in  issue,  and 
in  such  case  there  can  be  no  examination  as  to  particular  facts.  2  Russell  on 
Crimes,  708,  2d  ed.  Sewall  and  Parker,  J.  J.,  said  that  they  were  not  prepared 
to  say  that  the  testimony  of  general  character  should  be  admitted  in  behalf  of 
the  defendant,  in  all  criminal  prosecution,  but  they  were  clearly  of  the  opinion 
that  it  might  be  admitted  in  capital  cases,  in  favor  of  life.  Commonwealth  v. 
Hardy,  2  Mass.,  317. 

^  The  principle  upon  which  good  character  may  be  proved  is,  that  it  affords 
ft  presumption  against  the  commission  of  crime.     This  presumption  arises  from 


PROCEEDINGS  AGAINST  TRAVELING  MINISTERS.  73 

In  considering  the  weight  to  be  given  to  evidence,  where  a 
party  is  accused  of  the  commission  of  a  crime,  it  naturally  divides 
itself  into  two  parts.  First,  the  evidence  of  the  corpus  delicti,  or 
body  of  the  crime,  and  second,  the  guilty  agent  who  has  perpe- 
trated it.  It  is  said  that  the  only  fact  which  the  law  requires  to 
be  proved  by  direct  and  positive  testimony,  is  the  corpus  delicti 
itself;  the  fact  of  who  committed  the  crime,  or  who  is  the  guilty 
participant  in  the  commission  of  the  offense,  may  be  established 
by  circumstantial  evidence  ;  but  so  long  as  there  is  any  reasona- 
ble doubt  as  to  the  commission  of  the  crime,  there  can  be  no 
certainty  as  to  the  party  who  committed  it.  Thus,  Baron  Park 
told  the  jury  that  the  only  fact  which  the  law  requires  to  be 
proved  by  direct  and  positive  evidence,  in  a  case  of  murder,  was 
the  death  of  the  party  by  finding  the  body,  or  when  such  proof  is 


the  improbability,  as  a  general  rule,  as  proved  by  common  observation  and 
experience,  that  a  person  who  has  uniformly  pursued  an  honest  and  upright 
course  of  conduct,  will  depart  from  it  and  do  an  act  so  inconsistent  with  it. 
Such  a  person  may  be  overcome  by  temptation,  and  fall  into  crime;  and  cases 
of  this  kind  often  occur,  but  they  are  exceptions.  The  general  rule  is  otherwise. 
The  influence  of  this  presumption,  from  character,  will  necessarily  vary  accord- 
ing to  the  varying  circumstances  of  different  cases.  It  must  be  slight  when  the 
accusation  of  crime  is  supported  by  the  direct  and  positive  testimony  of  credible 
witnesses ;  and  it  will  seldom  avail  to  control  the  mind  in  cases  where  the  testi- 
mony, though  circumstantial,  is  reliable,  strong,  and  clear.  But  in  cases  where 
the  other  evidence  is  nearly  balanced,  but  slightly  preponderating  against  the 
defendant,  the  presumption  from  proof  of  good  character  is  entitled  to  great 
weight,  and  will  often  be  sufficient  to  turn  the  scale,  and  produce  an  acquittal. 
We  are  unable  to  perceive  why  this  presumption  may  not  and  should  not,  as  a 
general  rule,  be  as  controlling  in  cases  of  high  crimes  as  in  those  of  smaller 
ones.  In  case  of  murder,  arson,  robbery,  or  any  other  great  offense,  when  it  is 
apparent  that  it  must  have  been  p]ann£d  and  committed  with  great  deliberation, 
and  the  evidence  against  the  accused  is  uncertain,  why  should  not  proof  of  good 
character  influence  the  judgment  as  powerfully  as  in  any  case?  I  can  readily 
see,  that  in  cases  of  great  crimes,  evidently  perpetrated  with  but  little,  if  any, 
forethought,  under  the  influence  of  some  sudden  and  powerful  motive,  such 
proof  will  be  comparatively  weak ;  but  it  will  be  so  in  reference  to  any  other 
crime,  with  similar  circumstances.  The  attending  circumstances  must,  I  think, 
determine  the  degree  of  force  which  evidence  of  good  character  should  have. 
It  is  not,  in  ordinary  cases,  affected  by  the  grade  of  the  offense.  Formerly 
such  evidence  was  admissible  in  capital  cases,  but  now  it  will  be  received  in 
criminal  cases  generally.  1  M'Nally's  Ev.  320-323;  18  Ala.  720;  2  Starkie, 
303;  2  Bennett  and  Heard's  Leading  Criminal  Cases,  159-100;  Burrill's  Cir- 
cumstantial Ev.  530-532;    Cancevii  v.  The  People,  16  N.  Y.  50G. 


74  ECCLESIASTICAL  LAW. 


absolutely  impossible,  by  circumstantial  evidence  leading  closely 
to  that  result ;  as  where  the  body  was  thrown  overboard  far  from 
land,  which  is  quite  enough  to  prove  the  fact  without  producing 
the  body.^  When  an  offense  has  been  made  out  by  direct 
evidence,  and  it  is  clear  that  a  crime  has  been  committed,  there 
must  ex  necessitate  rei,  or  from  the  necessity  of  the  case,  be  a 
guilty  agent,  or  some  one  guilty  of  the  offense  ;  and  such  guilt, 
or  the  connection  of  the  person  accused  of  the  crime  with  the 
crime,  may  be  established  by  circumstantial  evidence.  And  these 
rules  of  evidence  are  as  pertinent  and  relevant  to  a  Church  trial 
or  investigation  as  they  are  to  any  other  class  of  cases,  where 
they  are  involved. 

A  question  often  arises  how  far  it  is  the  duty  of  tlie  court, 
or  of  the  presiding  officer,  to  interfere  where  the  prosecution 
has  failed  to  prove  some  material  fact  of  the  essence  of  the 
crime,  or  some  fact  which  is  essential  to  the  conviction.  It  is 
the  province  of  the  court,  or  the  presiding  officer,  to  respond  to 
the  law  of  the  case,  and  of  the  jury  or  committee  to  pass  upon 
all  questions  of  fact.  If  the  prosecution  leaves  some  element 
necessary  to  constitute  tlie  crime  entirely  unproved,  it  is  a  clear 
case  for  the  interposition  of  the  court,  or  of  the  presiding  officer ; 
as  in  the  case  of  treason  or  perjury,  where  two  witnesses  are 
required,  and  only  one  is  produced;  and  in  any  case,  when 
assuming  all  the  facts  proved  to  be  true  they  fall  short  of  consti- 
tuting the  crime,  the  accused  is  entitled  to  have  the  instruction  of 
the  court  in  his  favor:  but  where  competent  evidence,  or  evi- 
dence relevant  and  pertinent,  has  been  given,  tending  to  prove 
every  element  contributing  to  the  crime,  and  showing  the  con- 
nection between  the  accused  and  the  crime,  and  the  force  and 
effect  which  ought  to  be  given  to  it  depends  upon  the  credi- 
bility of  witnesses,  and  the  inferences  to  be  drawn,  as  to  which 
persons,  may  well  differ,  it  is  not  the  province  of  the  court, 
or  of  the  presiding  officer,  to  take  the  case  from  the  considera- 
tion of  the  jury  or  of  the  committee,  although  such  court,  or 

>In  the  case  of  Videita  (1  Park.  Cr.  R.  GO!))  "Walworth,  C.  J.,  says:  "One 
rule,  which  ought  never  to  be  departed  from,  is,  that  no  one  should  be  convicted 
of  murder  on  circumstantial  evidence,  unless  the  body  of  the  person  supposed 
to  have  been  murdered  has  been  found,  or  there  be  other  clear  and  irresistible 
proof  that  such  person  is  actually  dead."     liuloff'v.  The  People,  18  N.  Y.  188. 


SUPERANNUATED  AND  SUPERNUMERARY  PREACHERS.       75 

officer,  may  be  of  the  opinion  that  the  evidence  will  not  justify 
a  conviction. 

In  a  case  where  the  evidence  is  weak  and  unsatisfactory,  the 
presiding  officer  can  always  impress  the  committee  with  the  be- 
nign principles  of  the  common  law,  founded  upon  justice  and 
mercy,  established  and  recognized  by  the  wisdom  of  ages  for  the 
protection  of  the  innocent.  Such  as  that  the  prosecution  are 
bound  to  make  out  a  clear  case ;  that  the  accused  is  entitled  to 
the  benefit  of  all  reasonable  doubts;  that  is  it  better  that  ninety- 
nine  or  an  indefinite  number  of  guilty  persons  should  escape 
than  that  one  innocent  man  should  suffer.  This  is  the  extent 
to  which  the  presiding  officer  would  be  justified  in  going  in  a 
case  where  any  view  of  the  facts  may  be  required  to  be  taken 
in  order  to  conviction.  Justice  is  better  administered,  both  in 
civil  and  criminal  cases,  as  well  as  in  ecclesiastical  cases,  by 
confining  the  respective  duties  of  the  presiding  officer  and  the 
committee  within  their  strict  limits,  and  permitting  no  encroach- 
ment by  either. 

There  may  often  be  questions  presented  before  the  confer- 
ence, as  to  whether  certain  persons  are  amenable  to  a  particular 
conference.  Such  questions  being  questions  of  law  should  be 
decided,  ordinarily,  by  the  president  of  a  conference,  or  other 
presiding  officer,  except  where  there  is  connected  with  the  ques- 
tion of  law  a  question  of  fact;  and  then  it  is  for  the  presiding 
officer  to  declare  the  law,  or  to  instruct  the  committee  upon  the 
question  of  law  involved.  And  in  such  cases  it  is  for  the  com- 
mittee to  receive  the  law  from  the  presiding  officer,  and  apply 
it  to  the  facts. 


CHAPTER  XI. 

TRIALS   OF    SUPERANNUATED   AND    SUPERNUMERARY   PREACHERS. 

Section  3  of  ^  203  of  the  Discipline  provides  that  if  the  ac- 
cused be  a  superannuated  or  supernumerary  preacher,  living  out 
of  the  bounds  of  the  conference  of  which  he  is  a  member,  he  shall 
be  held  responsible  to  the  annual  conference  within  whose  bounds 
he  may  reside ;  and  such  conference  shall  have  power  to  try,  ac- 
quit, suspend,  locate,  or  expel  him  in  the  same  manner  as  though 
he  were  a  member  of  such  conference.     In  treating  of  preliminary 


76  ECCLESIASTICAL  LAW. 


investigations,  under  the  direction  of  a  bishop,  or  of  a  presiding 
elder,  in  accordance  with  §  1  of  ^  203,  we  did  not  include  pro- 
ceedings against  superannuate  or  supernumerary  preachers,  liv- 
ing out  of  the  bounds  of  their  own  conference,  and  within  the 
bounds  of  another  conference,  for  the  reason  that  the  language 
of  §  3  does  not  seem  to  be  sufficiently  broad  and  comprehen- 
sive to  confer  such  authority  on  a  bishop  or  presiding  elder ; 
but  the  language  seems  to  restrict  the  trial  to  the  proceeding 
before  the  conference  itself.  We  are  aware  that  the  title  "trial 
of  preachers"  would  seem  to  place  a  construction  on  this  para- 
graph different  from  the  one  we  have  given  it.  But  jurisdiction 
can  in  no  case  be  made  out  by  inferences;  and  as  we  view  the 
question,  except  for  §  3,  an  accused  superannuated  or  supernu- 
merary preacher,  residing  out  of  his  own  conference,  would  be 
still  amenable  to  the  jurisdiction  of  his  own  conference,  and  not 
liable  to  be  tried  elsewhere ;  and,  therefore,  unless  the  paragraph 
is  broad  enough  to  confer  the  jurisdiction,  or  the  authority  of  the 
bishop  or  presiding  elder,  over  him  to  direct  a  preliminary  in- 
quiry, such  authority  does  not  exist,  but  he  is  amenable  alone  to 
the  conference,  in  whose  bounds  he  resides,  or  to  the  conference 
of  which  he  is  a  member. 

CHAPTER  XII. 

TRIAL   BY   AN   ANNUAL   CONFERENCE   COMMITTEE. 

The  Discipline  provides,  that  where  an  annual  conference 
can  not  try  a  traveling  minister,  or  preacher,  during  the  session 
of  the  conference,  for  want  of  testimony,  and  such  conference 
refers  the  trial  to  the  presiding  elder  having  charge  of  the 
preacher  complained  of,  such  presiding  elder  shall  proceed  as 
directed  in  §§  1  and  2  of  T[  203.  Under  this  provision  a  ques- 
tion arises,  What  is  the  character  of  the  findings  by  the  commit- 
tee? are  they  preliminary,  with  power  only  to  suspend  the 
preacher  from  all  ministerial  service,  and  Church  privileges  until 
the  ensuing  annual  conference,  or  is  such  trial  in  contemplation 
of  law  a  trial  by  the  conference,  or  by  a  select  number,  as  pro- 
vided in  Tl  211  and,  therefore  a  final  determination,  from  which 
an  appeal  lies  to  the  judicial  conference?     The  wording  of  the 


PROCEEDINGS  AGAINST  PREACHERS  ON  TRIAL.  77 

Discipline  indicates  that  such  trial  is  preliminary  merely,  and 
that  no  appeal  can  be  taken  from  the  decision  of  the  committee ; 
but  that,  before  an  appeal  is  allowable,  it  must  first  be  passed 
upon  by  the  conference,  and  that  the  appeal  must  be  taken 
not  from  the  action  of  the  committee,  but  from  the  decision 
of  the  conference. 


CHAPTER  XIII. 

PROCEEDINGS   AGAINST   PREACHERS   ON   TRIAL. 

Preachers  of  this  class,  when  they  are  accused  of  crime, 
are  not  amenable  to  the  annual  conference,  but  they  are  held 
accountable  to  the  quarterly  conference  of  the  circuit  on  which 
such  preacher  travels.  In  other  respects  he  is  amenable  to  the 
annual  conference,  that  conference  having  authority  over  his 
right  to  preach ;  and  it  is  expressly  provided  in  the  Discipline 
that  his  continuance  on  trial  shall  be  equivalent  to  the  renewal 
of  his  license  to  preach;  but  the  conference  may  refuse  to 
continue  him  on  trial  without  assigning  any  cause  whatever  for 
such  refusal,  and  in  doing  so  he  is  not  wronged  ;  he  enters  the 
traveling  connection  on  trial  with  a  knnwlerlrre  tlmt  the  con- 
ference may  either  admit  or  reject  him.  What  we  have  said  with 
reference  to  the  trial  of  a  preacher  in  full  connection,  applies  to 
a  preacher  on  trial,  except  that  he  is  tried  before  the  quarterly, 
instead  of  before  the  annual,  conference,  and  that  it  may  be  that 
the  same  amount  of  evidence  required  to  convict  a  traveling 
minister,  in  the  full  connection,  would  not  be  required  for  his 
conviction;  but  that  evidence  which  satisfies  a  committee  of  his 
guilt,  is  all  that  the  Discipline  requires.  There  may  be  a  reason 
assigned  for  this  distinction;  the  one  is  on  probation,  it  is  an  ex- 
periment with  the  Church,  his  fitness  to  preach  the  Gospel  has  not 
been  fully  tested  and  determined;  the  other  has  passed  through 
every  ordeal,  and  been  subjected  to  every  trial  and  test  known 
to  the  Church,  has  served  out  his  probation,  and  has  publicly 
taken  upon  himself  the  vows  of  the  Church  to  consecrate  him- 
self to  the  work  of  the  ministry,  the  highest  and  holiest  duty 
that  was  every  intrusted  to  man;  and,  therefore,  it  is  the  policy 
of  the  Church  to  throw  around  such  a  one  the  mantle  of  protec- 


78  ECCLESIASTICAL  LAW. 


tion,  and  to  be  slow  to  believe  and  jealous  of  the  reputation  not 
only  of  the  preacher,  but  of  the  Church,  And  because  of  this, 
there  may  well  be  a  distinction  drawn  between  a  preacher  in  the 
full  connection  and  a  preacher  on  trial.  In  analogy  to  the  com- 
mon-law rule,  both  are  tried  by  their  peers  or  equals. 

A  preacher  on  trial,  convicted  by  a  quarterly  conference, 
where  such  conviction  has  been  followed  by  sentence  of  expulsion 
or  otherwise,  may  appeal  from  such  decision  to  the  next  annual 
conference. 

The  Discipline,  in  case  of  an  appeal  by  a  preacher  on  trial, 
is  silent  as  to  the  mode  of  trial  in  the  annual  conference.  The 
usage  of  the  Church,  however,  is  to  proceed  the  same  as  in  case 
of  the  trial  of  a  local  preacher,  deacon,  or  elder,  who  appeals  in 
accordance  with  the  provisions  of  ^  243  of  tlie  Discipline,  and 
such  mode  of  trial  in  the  annual  conference,  on  appeal,  will  be 
found  fully  treated  of  under  the  title  of  '^  Appeals  by  Local 
Preachers,  Deacons,  or  Elders.'' 

The  annual  conference  exercises  over  a  preacher  on  trial 
nothing  but  an  appellate  jurisdiction,  and  has  no  authority  to 
allow  new  charges  or  new  specifications ;  and  is,  upon  such  trial, 
restricted  to  the  evidence  offered  before  the  quarterly  conference, 
and  taken  and  preserved  in  the  records  and  minutes  of  the  quar- 
terly conference.  It  may  be  thought,  however,  that  the  annual 
conference,  having  jurisdiction  upon  an  appeal  over  the  subject- 
matter  and  the  accused,  might,  in  the  exercise  of  a  sound  judicial 
discretion  and  in  furtherance  of  justice,  allow  amendments  of  the 
charges  and  specifications,  provided  such  amendment  or  amend- 
ments do  not  amount  to  the  introduction  of  new  charges  and  new 
specifications,  but  there  is  no  authority  for  such  an  administration. 

The  entire  proceedings  are  summary,  and  from  the  scope  of 
the  Discipline,  it  is  evident  that  its  design  is  to  avoid,  as  far  as 
practicable,  all  technical  rules  by  which  the  innocent  may  some- 
times be  made  to  suffer  and  the  guilty  allowed  to  escape  punish- 
ment. While  this  is  right  to  a  limited  extent,  it  should  not  be 
carried  to  such  an  extreme  as  entirely  to  abrogate  all  rules  of 
investigation,  and  leave  every  administrator  of  the  Discipline, 
and  every  tribunal  of  the  Church,  free  to  decide  and  administer 
it  according  to  his  own  caprice.  If  we  have  rules  at  all,  they 
must  be  substantially  obeyed,  though,  for  certain  purposes,  the 


PROCEEDINGS  AGAINST  LOCAL  PREACHERS.  79 

presiding  officers  are  clothed  with  authority  and  discretion  in  the 
administration  of  such  rules,  so  as  to  vary  their  application  as 
circumstances  might  seem  to  require.  In  making  application  of 
the  rules,  in  a  given  case,  great  judgment  and  discretion  should 
be  used,  and  thus  avoid  the  reproach  that  is  so  often  heaped  upon 
the  administrators  of  the  Discipline,  that  they  have  no  fixed 
rules  for  the  government  of  judicial  investigation,  and  that  their 
authority  is  arbitrary  and  despotic. 


CHAPTER  XIV. 

PROCEEDINGS  AGAINST  LOCAL  PREACHERS. 

By  the  provisions  of  ^  213  of  the  Discipline,  where  a  local 
elder,  deacon,  or  preacher  is  charged  with  the  commission  of  a 
crime  expressly  forbidden  in  the  Word  of  God,  sufficient  to 
exclude  a  person  from  the  kingdom  of  grace  and  glory,  it  is  the 
duty  of  the  preacher  in  charge  to  call  a  committee  consisting  of 
three  or  more  local  preachers,  before  which  it  shall  be  the  duty 
of  the  accused  to  appear,  and  by  which  such  local  elder,  deacon, 
or  preacher,  upon  investigation,  may  be  acquitted,  or  if  found 
guilty,  suspended  until  the  next  quarterly  conference.  Upon 
such  investigation  the  preacher  in  charge  shall  cause  exact  min- 
utes of  the  testimony  and  examination  to  be  made  ;  and  such  tes- 
timony, together  with  the  charges,  specifications,  and  decision 
of  the  committee,  shall  be  laid  before  the  quarterly  conference, 
where  it  shall  be  the  duty  of  tiie  accused  to  appear,  in  those 
districts  that  have  not  adopted  the  law  with  reference  to  district 
conferences,  and  in  those  districts  that  have  organized  district 
conferences,  then  before  the  district  conference. 

If  the  accused,  when  duly  notified,  refuses  to  appear  before 
the  committee  at  the  time  and  place  fixed  for  the  investigation 
of  the  charges,  he  may  be  tried  in  his  absence.  In  the  trial  of  a 
local  preacher,  deacon,  or  elder,  the  quarterly  conference,  or  the 
district  conference,  having  original  jurisdiction,  may  cite.flie 
accused  to  appear  before  that  body  for  trial;  and  no  previous 
investigation  before  a  special  committee  is  necessary.  This  con- 
struction is  fairly  inferable  from  the  provisions  of  the  section 
before  referred  to;  for  it  is   there  provided  that  the  preacher 


80  ECCLESIASTICAL  LAW. 

having  charge  shall  call  a  committee,  who  may  aquit  or  suspend 
the  accused,  until  the  next  quarterly  conference.  And  because 
that  body  has  original  jurisdiction  in  the  case,  where  there  have 
been  no  proceedings  before  a  committee  convened  by  the  preacher 
having  charge,  regular  charges  and  specifications  should  be  made 
out,  and  such  local  elder,  deacon,  or  preacher  notified  to  ap- 
pear at  quarterly  or  district  conference  for  the  next  trial ; 
but  where  he  has  been  tried  before  a  committee,  and  sus- 
pended until  the  next  quarterly  or  district  conference,  the 
Discipline  makes  it  his  duty  to  appear  Avithout  any  further  formal 
notice  ;  but  he  should  have  regular  notice  of  the  time  and  place 
of  the  meeting  of  the  committee,  where  a  committee  has  been 
convened. 

Paragraph  214  of  the  Discipline  requires,  that  the  president 
shall,  at  the  commencement  of  the  trial,  appoint  a  secretary,  who 
shall  take  down  regular  minutes  of  the  evidence  of  the  trial, 
which  minutes,  when  read  and  approved,  shall  be  signed  by  the 
President,  and  also  by  the  members  of  the  conference  who  are 
present,  or  a  majority  of  them.  By  ^  215,  certain  preliminary 
proceedings  are  required,  in  a  certain  class  of  offenses,  before 
the  party  is  amenable,  for  trial,  to  the  jurisdiction  of  the  quar- 
terly or  district  conference.  Thus,  in  the  case  of  improper 
temper,  words,  or  actions,  not  amounting  to  an  offense  against 
the  canons  of  the  Church,  the  person  so  offending  shall  be  repre- 
hended by  the  preacher  in  charge ;  and  for  a  repetition  of  the 
same  offense,  or  one  of  like  character,  the  preacher  in  charge  is 
required  to  select  one  or  more  faithful  friends  of  the  party  trans- 
gressing, to  act  as  witnesses  that  he  has  been  so  reprehended  ;  and 
where  such  local  elder,  deacon,  or  preacher,  after  having  been  so 
admonished,  continues  to  persist  in  his  evil  ways,  he  is  liable  to 
be  cited  for  trial  at  the  next  quarterly  or  district  conference 
having  jurisdiction  of  him  ;  and,  upon  trial,  if  found  guilty  and 
impenitent,  he  shall  be  expelled  from  the  Church.  By  the  pro- 
visions of  ^  20G  of  the  Discipline,  there  is  still  another  prelimi- 
nary proceeding  authorized,  when  a  local  elder,  deacon,  or 
preacher  fails  in  business,  or  contracts  debts  which  he  is  not  able 
to  pay.  So  jealous  is  the  Discipline  of  every  thing  that  would 
have  the  appearance  of  dishonesty  or  a  reckless  disregard  of  the 
rights  of  others,  that  it  is  made  the  duty  of  the  preacher  in  charge, 


THE  TRIAL  OF  AN  ACCUSED  MEMBER.  81 

in  such  a  case,  to  appoint  three  judicious  members  of  the  Church 
to  inspect  and  investigate  the  accounts,  contracts,  and  circum- 
stances of  the  supposed  delinquent ;  and  if,  after  investigation 
by  such  members,  they  are  of  the  opinion  that  such  delinquent 
has  behaved  dishonestly,  or  contracted  debts  without  the  proba- 
bility of  paying  for  them,  his  case  should  be  disposed  of  by  the 
quarterly  or  district  conference  in  accordance  with  the  provisions 
of  ^213  of  the  Discipline,  that  is,  regular  charges  should  be 
preferred  against  him,  and  he  should  be  notified  and  required 
to  answer  as  in  case  of  charo^es  of  other  crimes. 


CHAPTER  XV. 

THE   TRIAL    OF   AN    ACCUSED    MEMBER. 

According  to  the  Discipline  and  usage  of  the  Methodist 
Episcopal  Church,  the  aggregate  body  of  the  Church  is  composed 
of  separate  societies,  termed  United  Societies.  These  societies 
are  separate  and  distinct  for  certain  purposes,  and  united  for  cer- 
tain other.  The  members  of  one  of  these  societies  are  said  to  be 
members  of  the  Church,  and  they  have  all  the  rights,  pi'ivileges, 
and  immunities  belonging  to  the  Church,  conferred  on  mere 
members.  Yet  a  member  of  the  Church  is  only  amenable  to 
the  society  to  which  he  belongs;  and  where  he  is  charged  with 
the  commission  of  a  crime,  or  is  guilty  of  immoral  conduct, 
he  is  to  be  brought  to  trial  before  a  committee  of  not  less  than 
five,  who  are  not  members  of  the  quarterly  conference,  selected 
by  the  preacher  in  charge;  but  where  it  is  necessary,  the  Disci- 
pline provides  that  the  selection  may  be  made  from  any  part  of 
the  district.  That  is,  it  is  not  necessary  that  the  committee 
should  be  members  of  the  same  local  society,  or  of  the  same  cir- 
cuit or  station  along  with  the  accused.  They  are  competent  if 
they  are  not  members  of  a  quarterly  conference  within  the  pre- 
siding elder's  district.  The  trial  is  to  be  presided  over  by  the 
preacher  in  charge,  whose  duty  it  is  to  cause  exact  minutes  of 
the  evidence  and  proceedings  to  be  reduced  to  writing,  and,  when 
so  reduced  to  writing,  the  proceedings  should  be  properly  authen- 
ticated and  signed  by  the  preacher  in  charge  and  secretary,  and 
when  so  executed,  they  become  the  record  in  the  case. 


82  ECCLESIASTICAL  LAW. 

If  a  member  is  accused  of  a  crime  cognizable  before  the  reg- 
ularly constituted  authorities  of  the  Church,  regular  charges  and 
specifications  should  be  made  out  against  him  in  due  form,  and, 
when  so  made  out,  the  charges  and  specifications  should  be  signed 
by  some  member  of  the  Church.  They  should  not,  however,  as 
a  rule,  be  prepared  by  the  pveacher  in  charge,  for  there  is  a 
manifest  impropriety  in  his  doing  so,^  in  as  much  as  it  may 
become  his  duty,  as  president  of  the  trial,  to  pass  upon  the 
sufficiency  or  insufficiency  of  the  charges  or  specifications ;  and 
he  ought  to  labor  to  keep  his  own  mind  entirely  free  from  bias ; 
in  other  words,  he  ought  to  stand  in  that  relation,  both  to  the 
Church  and  to  the  accused,  that  each  might  realize  that  he  is  im- 
partial, and  will  fairly  administer  the  Discipline.  The  difficulty 
referred  to  by  Bishop  Baker  is  easily  obviated  ;  where  the  charges 
are  presented  to  the  minister  in  a  rough  form,  so  as  to  require  re- 
vision, he  ought,  if  practicable,  to  refer  them,  where  the  party 
presenting  them  is  not  competent,  to  some  third  person  to  reduce 
them  to  form,  so  that  they  would  be  legally  presentable. 


CHAPTER  XVI. 

THE   MODE   OP   STATING  FACTS   IN    THE   COMPLAINT. 

A  GENERAL  statement  of  facts,  which  admits  of  almost  any 
proof  to  sustain  them,  in  a  specification  is  objectionable.  There 
are  cases  where  a  direct  and  positive  averment  is  necessary  to 
be  made  in  specific  terms,  as  where  the  law  of  the  Discipline  has 
fixed  an  appropriate  and  technical  term  to  describe  a  crime,  or 
other  offense,  as  murder,  burglary,  arson,  and  the  like.  Except 
in  particular  cases,  where  precise  technical  expressions  are  re- 
quired to  be  used,  there  is  no  rule  of  law  that  other  words  should 
be  employed  than  such  as  are  in  ordinary  use ;  or  that  in  plead- 
ing a  different  sense  is  to  be  put  upon  them  from  that  which 
they  bear  in  ordinary  acceptation ;  where,  however,  there  has 

^  The  administrator  of  Discipline  must,  ordinarily,  reduce  to  suitable  form 
the  charges  and  specifications  from  the  rouj^h  story  of  the  complainant.  To 
give  no  attention  to  any  complaints,  except  such  as  are  presented  in  due  form, 
is  to  neglect  the  greatest  number  of  those  requiring  the  special  investigation  of 
the  Church.     Baker  on  Discipline,  97. 


THE  MODE  OF  STATING  FACTS  IN  THE  COMPLAINT.  83 

been  a  long  established  form  of  stating  the  facts  of  the  particular 
case,  it  should  in  general,  for  the  sake  of  certainty,  be  adopted. 
The  principal  rule  as  to  the  mode  of  stating  facts  is,  that  they 
must  be  set  forth  with  certainty,  by  which  is  meant  a  clear  and 
distinct  statement  of  the  facts  which  constitute  the  cause  of  com- 
plaint. The  term  pleading  (and  we  use  this  term  in  contradis- 
tinction to  the  term  argument),  as  it  is  used  by  our  civil  law 
writers,  may  be  divided  into  three  sorts.  First,  to  a  common 
intent;  second,  certainty  to  a  certain  intent  in  general;  third, 
certainty  to  a  certain  intent  in  every  particular.  Certainty  to 
a  common  intent  may  be  defined  to  be  that  kind  of  certainty 
that  when  words  are  used  that  will  bear  a  natural  sense,  and  also 
an  artificial  one,  or  one  to  be  made  out  by  argument  or  infer- 
ence, the  natural  sense  shall  prevail.  It  is  simply  a  rule  of  con- 
struction, and  not  of  addition ;  therefore,  common  intent  can  not 
add  to  a  sentence  words  which  are  omitted.  This  description 
of  certainty  is  sufficient  in  a  complaint,  either  against  a  member 
of  the  Church,  or  a  traveling  minister,  preacher,  or  bishop.  ^ 

'  Certainty  to  a  common  intent  is  sufficient  in  a  special  plea,  and  certainty 
even  to  a  certain  intent  according  to  Mr.  Justice  Buller,  means  that  which  upon 
a  fair  and  reasonable  construction,  may  be  called  certain  without  recurring  to 
possible  facts;  or  when  words  are  used  which  will  bear  a  natural  sense,  and  also 
an  artificial  one,  or  one  to  be  made  out  by  argument,  or  inference,  the  natural 
sense  shall  prevail.  Buller,  J.,  in  King  v.  Lyme^  Douglass,  159,  and  Davas- 
ton  V.  Payne,  2  H.  Bl.,  530,  Spencer  v.  Sotithwick,  9  John.  31fi. 

A  plea  in  bar  of  the  plaintiff's  action  must  be  certain  to  a  common  intent; 
it  must  be  direct  and  positive  in  the  facts  set  forth,  and  must  state  them  with 
all  necessary  certainty.  It  is  not  correct  to  say  that  in  a  plea  justifying  a  libel, 
because  the  subject  comprehends  multiplicity  of  matter,  there  may  be  general 
pleading  in  order  to  avoid  prolixity.  In  1  Chitty's  Pleading,  240,  516,  the  rule 
will  be  found.  A  rule  frequently  sanctioned  in  this  court  and  adjudicated  in 
the  court  for  the  correction  of  errors,  11  John.  Rep.  57G.  The  rule  to  which  I 
allude  is  laid  down  in  the  case  of  Anson  v.  Stewart,  1  Tenn.  R.,  748.  There 
the  action  was  for  a  libel,  charging  the  plaintiff  with  being  connected  and  con- 
cerned with  a  gang  of  swindlers  and  common  informers.  The  plea  stated  thnt 
the  plaintiff  had  been  dishonestly  concerned,  and  connected  with,  and  was  one 
of  a  gang  of  swindlers  and  common  informers,  and  had  also  been  guilty  of 
defrauding  divers  persons  with  whom  he  had  dealings  and  transactions.  On 
demurrer  to  this  plea,  it  was  decided,  that  it  was  bad  on  account  of  its  general- 
ity; that  it  was  contrary  to  every  rule  of  pleading  to  charge  the  plaintiff  with 
swindling,  without  showing  any  instances  of  it;  for  wherever  one  person  charges 
another  with  fraud,  he  must  know  the  particular  instances  on  which  his  charge 
is  founded,  and  therefore  ought  to  disclose  them.     Ashhurst,  J.,  said  one  part 


84  ECCLESIASTICAL  LAW. 

It  is  a  maxim  of  pleading,  and  may  be  applicable  here,  that 
every  thing  should  be  taken  most  strongly  against  the  party 
pleading.  But  in  applying  this  maxim,  the  rules  before  stated 
must  be  kept  in  view  ;  particularly  those  relating  to  the  degree 
of  precision  or  certainty  required  in  the  statement  of  facts. 
The  language  employed  should  always  receive  a  reasonable 
construction  and  intendment ;  and  where  expressions  are  used 
that  are  capable  of  different  meanings,  that  meaning  should  be 
adopted  which  Avill  support  rather  than  defeat  the  complaint. 
Every  specification  or  complaint  ought  to  contain,  within  itself, 
a  complete  description  of  such  facts  and  circumstances  as  consti- 
tute the  offense,  without  inconsistency  or  repugnancy ;  and  ought 
to  be  certain.     A  statement  of  time  and  place  should  be  regu- 

of  tlae  defendant's  argument  lias  been  that  the  plea  is  only  as  general  as  the 
charges  in  the  declaration.  He  said  it  was  to  be  observed  that  it  was  the  charge 
of  the  defendant,  and  the  plaintiff  was  bound  to  state  it  as  made,  and  that  it 
did  not  follow  that  the  defendant  ought  to  justify  it  in  so  general  a  way.  But 
when  he  took  upon  himself  to  justify  generally  the  charge  of  swindling,  he 
must  be  prepared  with  the  facts  which  constitute  the  charge,  in  order  to  main- 
tain his  plea,  and  then  he  ought  to  state  those  facts,  specifically  to  give  the 
plaintiff  an  opportunity  of  denying  them;  for  the  plaintiff  could  not  come  to 
the  trial  prepared  to  justify  his  whole  life.  If  the  defendant  could  support  his 
charge  it  must  be  known  to  him,  and  he  must  call  witnesses  to  prove  particular 
acts  of  fraud,  and  if  he  could  not  substantiate  the  charge,  he  ought  not  to  have 
made  it.  Buller,  J.,  said,  "that  if  the  plaintiff  had  been  guilty  of  any  acts  of 
swindling,  the  defendant  must  be  supposed  to  know  them,  that  the  defendant 
had  no  justification  unless  he  could  prove  the  special  instances,  and  knowing 
them  he  ought  to  put  them  on  the  record,  that  the  plaintiff  might  be  prepared 
to  answer  them."  Both  judges,  Buller  and  Ashhurst,  referred  to  cases  of  in- 
dictment for  barratry,  keeping  a  disorderly  house,  and  as  a  common  scold;  and 
declared  them  to  be  peculiar  cases,  supported  by  peculiar  reasons,  but  not  appli- 
cable to  the  case  then  under  consideration.  Buller,  J.,  stated  the  rule  in  plead- 
ing to  be,  "  that  wherever  a  subject  comprehends  multiplicity  of  matters,  in 
order  to  avoid  prolixity,  generality  of  pleading  is  allowed."  But  he  says  if 
there  be  any  thing  specific  in  the  subject,  though  consisting  of  a  number  of 
facts,  they  must  all  be  enumerated.  I  have  been  thus  particular  in  stating  the 
doctrine  advanced  by  the  judges  in  Anson  v.  Stewart;  for  no  case  has  fallen 
under  my  observation  impugning  the  principles  there  laid  down.  It  would  be  an 
alarming  doctrine  that  one  man  might  charge  another  with  stealing  generally, 
and  then,  by  way  of  justification,  i)lead  merely  that  he  was  a  thief,  and  had 
stolen,  or  that  he  had  stolon  from  A.  or  B.  or  C-  Such  a  plea  would  be  con- 
demned by  every  sound  lawyer  as  falling  far  .short  of  a  justification.  A  material 
and  traversable  fact  must  be  expressly  stated.  2  John.  R.  43.3;  '^  John.  R.  242. 
7  John.  R.  75;   Van  Ness  v.  ITamilton,  19  John.  367-369. 


THE  MODE  OF  STATING  FACTS  IN  THE  COMPLAINT.  85 

larly  averred,  in  each  specification,  though  neither  is  required  to 
be  proved  as  Jaid. 

In  construing  a  complaint,  one  specification  can  not  be  em- 
ployed to  aid  another;  but  each  specification,  like  several  counts 
in  a  declaration,  or  in  an  indictment,  should  contain  a  sufficient 
statement  of  facts  to  constitute  tiie  crime  within  Itself;  and  Avhere 
a  complaint  contains  several  charges,  or  several  specifications, 
one  charge,  or  one  specification,  may  be  adjudged  sufficient,  and 
the  others  insufficient  ;  subject  to  this  qualification,  that  if  the 
charge  is  insufficient,  as  where  the  charge  does  not  amount  to  an 
offense  against  the  canons  of  the  Church,  the  specifications  under 
such  charge,  though  sufficient  in  themselves,  Avill  be  adjudged 
bad  for  want  of  a  sufficient  charge  to  support  them. 

While  under  this  head,  there  is  still  a  further  question  to  be 
considered,  and  that  is,  that  facts  only  are  necessary  to  be  stated 
and  not  arguments,  or  inferences,  or  matters  of  law.  And  there 
may  be  a  still  further  qualification  of  this  rule ;  that  is,  wdiere  the 
facts  are  of  such  a  public  or  general  nature  that  the  courts  or 
committee  wnll,  ex  officio,  take  notice  of  them,  they  ought  not  to 
be  stated  in  the  complaint.  Thus  the  court  will,  without  pleading, 
take  notice  of  the  proclamations  of  the  President  of  the  United 
States ;  and  the  Articles  of  War,  emanating  from  the  CroAvn,  or 
the  President,  by  virtue  of  acts  of  Parliament,  or  Congress ;  and 
also  of  the  privileges  of  the  Crown,  or  of  the  President ;  or,  in 
ecclesiastical  law,  the  privileges  of  the  bishops,  or  of  the  head 
departments  of  the  Church.  A  Church  tribunal  will,  also,  take 
notice  of  the  time  and  place  of  the  meeting  of  the  General  Con- 
ference, and  of  the  annual  conferences,  and  of  the  course  of  the 
procedure  In  the  conferences,  and  of  the  disciplinary  rules  and 
regulations  of  the  Church.  It  is  said  that  our  civil  courts  will, 
ex  officio,  take  notice  of  the  ecclesiastical,  civil,  and  marine  laws, 
without  any  statement  of  them  In  pleading,  and  if  there  be  a 
misstatement  of  such  la^vs,  and  of  the  facts  affecting  them,  the 
pleading  will  be  held  insufficient.  Thus,  where  an  administrator 
durante  miyiori  (etnte  in  his  declaration  averred  that  the  infant 
was  within  the  age  of  twenty-one  years  the  declaration  was 
holden  bad,  because  the  court  would  take  notice  that,  by  the 
ecclesiastical  law,  such  administration  ceased  at  the  age  of  seven- 
teen.    It  it  probable  that  in   this   country,   -where   the  relation 

7 


86  ECCLESIASTICAL  LAW. 

between  the  Church  and  the  State  is  not  so  intimate  as  in  Eng- 
land, that  this  Latter  statement  would  not  be  correct ;  and  that 
where  a  party  relies  upon  an  ecclesiastical  law,  he  would  be 
compelled  to  set  the  same  out  in  his  plea,  in  like  manner  as  he 
would  be  required  to  set  out  the  laws  of  a  sister  State,  where 
such  laws  are  at  variance  with  the  common  law.  ^ 


CHAPTER  XVII. 

THINGS    JUDICIALLY    TAKEN    NOTICE    OF  WITHOUT    PLEADINGS    OR 

PROOF. 

There  are  certain  things  that  courts,  or  rather  tribunals, 
whether  civil,  military,  or  ecclesiastical,  take  judicial  notice  of 
without  proof;  and  we  will  briefly  refer  to  a  few  of  them,  as 
illustrating  the  rule.  Thus,  one  nation  or  State  takes  notice,  ex 
officio,  of  the  existence  of  every  other  civilized  nation  or  State  ; 
and  the  general,  public,  and  external  relation  of  each  to  the  other, 
and  the  usual  and  appropriate  symbols  of  nationality  and  sover- 
eignty, such  as  the  flag  and  seal.  Every  sovereign,  and  every 
public  tribunal  and  functionary,  of  every  nation,  takes  notice  of 

^  In  the  case  of  Walker  v.  Maxwell  (1  Mass.  103),  it  was  held  that  a 
defendant  who  relies  upon  the  statute  of  another  State  must,  in  his  plea,  set 
out  the  statute,  that  the  court  may  see  whether  the  proceedings  were  warranted 
by  the  statute  or  not;  but  that  the  common  law  might  be  considered  common  to 
both  States,  and  regulating  the  proceedings  of  courts  of  justice  in  both. 

The  question  is,  whether  the  proceedings  alleged  to  have  been  in  the  State 
of  Vermont  are  well  pleaded  ?  It  is  laid  down  by  Mr.  Chitty,  "  That  courts  do 
not,  ex  officio,  talce  notice  of  foreign  laws,  and  consequently  they  must,  in  gen- 
eral, be  stated  in  pleading."  (  1  Chitty's  PI.  221.)  The  question  arose  in  Cal- 
lett  V.  Keith,  2  East,  261,  which  was  an  action  of  trespass  for  seizing  and  taking 
a  ship  at  the  Cape  of  Good  Hope,  to  wit,  etc.  The  defendant,  among  other 
things,  pleaded  that  the  settlement  of  the  Cape  of  Good  Hope  was  subject  to  for- 
eign, to  wit  Dutch,  laws ;  that  the  ship  was  within  the  jurisdiction  of  the  Supreme 
Court  there,  and  that  certain  proceedings  were  instituted  and  had;  that  the 
defendants,  according  to  tlie  foreign  laws  of  the  place,  the  said  court  having 
competent  jurisdiction,  were  authorized  and  ordered  to  detain  the  ship.  To  this 
plea  there  was  a  demurrer.  In  deciding  the  case,  Gro.se,  J.,  said,  "  That  the 
plea  wa.<!  too  general ;  that  it  was  not  enough  to  state  that  the  vessel  was  within 
the  jurisdiction  of  the  court,  which  was  governed  by  foreign  laws,  and  that 
certain  proceedings  were  instituted;  but  the  defendant  should  have  shown 
what  the  foreign  law  was  which  gave  jurisdiction  to  the  court."  Holmes  V. 
Brotif/htou,  10  Wend.  IS. 


THINGS  JUDICIALLY  TAKEN  NOTICE  OF  WITHOUT  PROOF.   87 


the  existing  sovereign  powers  and  titles  of  all  the  others  in  the 
civilized  world ;  also  of  public  acts,  decrees,  and  judgments, 
exemplified  under  their  appropriate  seals.  ^  Courts  and  public 
oflScers  in  like  manner  take  notice  of  the  laws  of  nations,  and  the 
general  customs  and  usages  of  merchants,  as  well  as  the  public 
statutes  and  general  laws^  and  customs  of  our  own  country,  as 
well  ecclesiastical  as  civil.  They  also  take  notice  of  the  seal  of  a 
notary  public ;  of  foreign  admiralty  and  maritime  courts  •,  and 
the  co-ordinate  jurisdiction  of  such  courts,  the  same  being  recog- 
nized judicially  every-where;  and  their  seals  need  not  be  proven. 
Neither  is  it  necessary  to  prove  things  which  must  happen  ac- 
coi'ding  to  the  known  course  of  nature  ;  nor  to  prove  the  course 
of  time  ;  nor  of  the  heavenly  bodies  ;  nor  the  coincidence  of  days 
of  the  week  with  days  of  the  month ;  nor  the  meaning  of  words 
in  the  English  language ;  nor  any  matter  of  public  history, 
affecting  the  Avhole  people  ;  nor  public  matters  affecting  the  gov- 
ernment of  the  country ;  nor  the  current  coin  of  the  country ; 
nor  the  territorial  extent,  jurisdiction,  and  sovereignty  of  our 
own  government ;  nor  of  the  local  divisions  of  the  country  into 
States,  counties,  townships,  cities,  and  towns  ]  nor  the  relative 
positions  of  such  local  divisions. 

^  The  testimony  of  witnesses,  proving  the  seal  of  the  court,  and  the  signature 
of  the  judge,  are  sufficient  to  admit  the  exemplifications  (  7  John.  K.  519  );  and 
it  seems,  from  the  same  case,  that  proof  of  the  seal  alone  is  sufficient.  See, 
also.  Peak's  Ev.  48.  But  the  public  seal  of  a  State  proves  itself;  it  is  a  matter 
of  notoriety,  and  may  be  taken  notice  of  as  a  part  of  the  law  of  nations,  ac- 
knowledged by  all.  o  East,  222  N.  See,  also,  4  Dall.  416.  The  proceedings  cf 
a  court  of  admiralty  are  sufficiently  proved  by  the  seal  of  the  court,  the  certifi- 
cate of  the  judge,  and  the  certificate  of  a  notary,  that  the  person  certifying  as 
judge  is  so  in  fact     5  Cranch,  335.     Lincoln  v.  BatteUe,  6  Wendell,  483. 

^  The  Circuit  Courts  of  the  United  States  are  created  by  Congress;  not  for 
the  purpose  of  administering  the  local  laws  of  a  single  State  alone,  but  to 
administer  the  laws  of  all  the  States  in  the  Union,  in  cases  to  which  they  re- 
spectively apply.  The  judicial  powers  conferred  on  the  General  Government, 
by  the  Constitution  extend  to  many  cases  arising  under  the  laws  of  the  differ- 
ent States;  and  this  court  is  called  upon,  in  the  exercise  of  its  appellate  juris- 
diction, constantly  to  take  notice  of  and  administer  the  jurisprudence  of  all  the 
States.  That  jurisprudence  is  then,  in  no  just  sense,  a  foreign  jurisprudence,  to 
be  proved  in  the  courts  of  the  United  States,  by  the  ordinary  modes  of  proof, 
by  which  the  laws  of  a  foreign  country  are  to  be  established ;  but  it  is  to  be 
judicially  taken  notice  of  in  the  same  manner  as  the  laws  of  the  United  States 
are  taken  notice  of  by  these  courts.     Owings  v.  Hull,  11  Curtis,  503-4. 


88  ECCLESIASTICAL  LAW. 


In  analogy  to  these  principles  the  Methodist  Episcopal  Church 
will  take  notice  ex  officio  of  the  government  of  the  Church,  and 
its  organization  into  a  General  Conference,  annual  conferences, 
district  conferences,  and  quarterly  conferences;  the  extent  and 
local  divisions  of  each ;  the  number  and  names  of  the  bishops, 
and  their  executive,  ministerial,  and  judicial  authority ;  and  the 
power  and  authority  of  each  annual,  district,  and  quarterly  con- 
ference, and  the  bishop,  president,  or  presiding  officer,  or  elder, 
at  any  given  conference ;  upon  the  same  principle  the  General 
Conference  will  take  notice  of  its  officers,  at  any  given  confer- 
ence, the  number  and  names  of  the  members  of  such  conference, 
and  the  number  of  annual  conferences  under  the  jurisdiction  of 
the  General  Conference;  but  one  annual  conference  will  not 
judicially  take  notice  of  who  are  members  of  another  annual 
conference. 

An  annual  conference  will,  however,  take  notice  of  the  num- 
ber and  names  of  members  of  such  annual  conference;  and 
whether  a  traveling  minister  or  preacher  is  on  trial  or  admitted 
into  full  connection  with  the  conference.  They  will  also  take 
notice  of  the  number  of  districts  in  an  annual  conference,  and 
who  is  appointed  presiding  elder  over  each  district,  and  the  num- 
ber and  names  of  the  members  of  each  district  or  quarterly  con- 
ference; so,  also,  the  judicial  tribunals  of  the  Church  will  take 
notice  of  the  acts,  resolves,  and  resolutions  of  the  General  Con- 
ference, and  all  canons  of  the  Church,  whether  the  result  of  dis- 
ciplinary rule,  or  general  usage.  Each  tribunal  of  the  Church 
will  officially,  without  proof,  take  notice  of  their  own  jurisdic- 
tion and  authorit}',  and  of  the  jurisdiction  and  authority  of  all 
the  other  administrative  and  judicial  authorities,  connected  with 
any  or  either  of  the  conferences;  and  the  power  and  appellate 
jurisdiction  of  such  tribunals  of  the  Church,  as  are  authorized 
to  sit  in  revision  upon  the  proceedings  of  such  judicial  body,  but 
they  will  not  take  notice  ex  officio  of  the  number  and  names 
of  those  who  compose  special  committees,  appointed  by  a  gen- 
eral or  annual  conference,  or  the  power  or  authority  of  such 
committee;  neither  will  they  take  notice  of  the  fact  that  a 
given  society  is,  or  is  not,  incorporated  under  the  laws  of  the 
State.  But  where  an  annual  conference,  by  virtue  of  the  laws 
of  the   State,   is   incorporated,   the    conference   so   incorporated 


IS  AN  ECCLESIASTICAL  TRIAL  CRIMINAL  IN  CHARACTER?    89 

will  judicially  take  notice  of  that  fact,  and  all  matters  of  Church 
history,  and  of  the  relation  of  our  own  Church  to  other  Protes- 
tant Churches,  that  are  on  fraternal  relations  with  us,  will  be 
judicially  taken  notice  of. 

CHAPTER  XVIII. 

IS   AN   ECCLESIASTICAL  TRIAL  CRIMINAL   IN  CHARACTER? 

This  is  a  question  that  is  only  important  to  be  considered 
■with  reference,  first,  to  the  manner  of  conducting  the  trial; 
second,  to  the  weight  that  is  to  be  given  to  the  evidence;  and, 
third,  to  the  character  of  the  judgment,  or,  sentence  to  be  pro- 
nounced. It  is  true,  oftentimes,  that  the  questions  involved  in  a 
Church  trial,  or  investigation,  are  questions  growing  out  of  the 
commission  of  crime  of  all  shades  and  denomination,  from  the 
highest  type  of  treason  to  the  smallest  misdemeanors  cognizable 
before  our  police  courts.  A  Church  trial  often  involves  ques- 
tions that  are  purely,  in  the  eye  of  the  common  law,  cognizable 
before  the  civil  tribunals,  using,  in  this  sense,  the  term  civil  as 
contradistinguished  from  criminal ;  as  where  a  Church  member 
or  preacher  is  accused  of  a  breach  of  contract,  or  a  failure  to 
meet  his  obligations,  when  he  is  possessed  of  sufficient  ability  so 
to  do;  or  where  he  is  guilty  of  a  wrong  or  tort,  not  amounting 
in  law  to  a  crime;  for  all  wrongs  are  not  redressible  in  our 
courts  of  law,  by  resort  to  criminal  process ;  on  the  contrary, 
only  such  torts,  as,  besides  being  an  individual  injury  to  the 
party  wronged,  are  also  an  injury  to  the  public  at  large.  It 
often  happens,  where  a  crime  is  committed,  that  the  law  affords 
two  remedies,  one  to  the  party  injured,  on  account  of  the  dam- 
age sustained  by  him,  and  the  other  to  the  public.  And  when 
our  courts  are  investigating  the  civil  injury,  such  investigation 
of  necessity  involves  an  inquiry  into  the  commission  of  the 
crime ;  thus,  if  one  man  assaults  and  beats  another,  or  maims 
him,  he  is  indictable  for  the  assault  or  maiming,  and  he  is  also 
liable  to  the  party  assaulted  for  the  civil  injury.  While  the  trial 
is  for  the  civil  injury,  at  the  suit  of  the  party  assaulted,  it  nec- 
essarily requires  an  investigation  of  the  facts,  and  all  the  attend- 
ing circumstances.  It  was  formerly  held  that,  in  case  of  treason 
and  felonies,  it  was  the  duty  of  the  party  injured  to  bring  the 


90  ECCLESIASTICAL  LAW. 

traitor  or  felon  to  the  criminal  bar  of  the  court,  and  to  cause  him 
to  be  prosecuted  for  the  offense  ;  and  that  by  reason  of  the  mag- 
nitude of  the  crime  the  treason  or  felony  merged  the  civil  rem- 
edy, the  traitor  or  felon  forfeiting  his  estate  and  goods  to  the 
crown ;  therefore,  the  party  injured  was  without  redress.  In  this 
country,  criminal  prosecutions  are  not  conducted,  and  carried  on 
as  in  England,  exclusively  by  private  individuals,  but  we  have 
public  officers  and  assistants  to  represent  the  Government  in 
these  matters.  Still  we  have  no  substitutes  for  the  individual, 
in  the  duty  of  making  disclosures  of  crimes  to  the  authorities,  or 
ordinarily  taking  other  incipient  steps.  In  this  respect  the  duty 
of  the  Church  members  is  somewhat  analogous  to  the  duty  of 
the  citizen.  The  Church  member  should  see  to  it  that  an 
offender,  especially  if  the  offense  be  of  a  grave  character,  is 
brought  to  trial  before  the  proper  Church  tribunal,  and  thereby 
the  Church  purged  of  an  unworthy  member. 

■  In  criminal  proceedings  the  people,  government,  or  common- 
wealth, as  they  are  variously  termed,  is  made  the  complainant ; 
in  civil  proceedings  the  party  complaining  appears  on  the  record 
as  the  complainant.  In  several  places  in  the  Discipline,  the 
parties  are  spoken  of  in  the  sense  of  plaintiff  and  defendant, 
indicating  that  there  is  an  accuser  as  well  as  the  accused,  so 
that  it  is  difficult  to  determine  the  exact  nature  of  the  proceed- 
ings. It  is  certain  that  there  are  matters  cognizable  before  a 
Church  tribunal  Avhich  are  purely  of  a  civil  nature,  as  will  be 
seen  by  reference  to  the  title,  "Disagreement  in  business  and 
non-payment  of  debts."  Under  this  title  it  is  provided,  that  in 
case  of  disagreement  between  two  or  more  members  of  the 
Church  in  business  transactions,  which  can  not  be  settled  by  the 
parties,  the  preacher  in  charge  shall  inquire  into  the  circumstan- 
ces of  the  case,  and  recommend  to  the  parties  a  reference  to  five 
arbitrators ;  two  to  be  chosen  by  each  of  the  parties,  and  the 
fifth  to  be  chosen  by  tlie  four  arbitrators  thus  selected;  and  upon 
such  recommendation  being  made,  if  either  party  refuses  to  abide 
by  the  judgment  of  the  arbitrators,  where  an  arbitration  takes 
place,  and  fails  to  show  sufficient  cause  for  such  refusal,  he  shall 
be  expelled;  or  if  a  member  of  the  Church  shall  refuse,  in  case 
of  debt  or  other  disagreement,  to  refer  the  matter  to  arbitration, 
when  recommended  by  the  preacher  in  charge,  or  shall  engage  in 


IS  AN  ECCLESIASTICAL  TRIAL  CRIMINAL  IN  CHARACTER?    91 

a  lawsuit  with  another  member,  before  such  preliminary  proceed- 
ings are  had,  he  shall  be  brought  to  trial ;  and  if  he  fails  to  show 
that  the  case  is  of  such  a  nature  as  to  require  investigation,  and 
the  prosecution  of  a  suit  at  law,  or  in  equity,  he  shall  be  expelled. 
So,  by  the  provisions  of  ^f  226  and  If  227,  it  is  provided,  that 
the  preacher  who  has  the  oversight  of  a  circuit  or  station,  is 
required  to  execute  all  rules  fully  and  strenuously  against  frauds 
and  dishonest  insolvencies,  suffering  none  to  remain  in  the 
Church,  on  any  account,  who  are  found  guilty  of  fraud  ;  and,  to 
prevent  scandal,  when  any  member  fails  in  business  or  contracts 
debts  which  he  is  not  able  to  pay,  two  or  three  judicious  members 
should  be  appointed,  by  the  preacher  in  charge,  to  inspect  the 
accounts,  contracts,  and  circumstances  of  the  case  of  the  supposed 
delinquent ;  and  if,  upon  such  investigation,  they  come  to  the 
conclusion  that  he  has  acted  dishonestly,  or  borrowed  money 
without  a  probability  of  repaying  it,  he  shall  be  brought  to 
trial,  and,  if  adjudged  guilty,  expelled. 

Notwithstanding  these  provisions  contained  in  the  Discipline, 
taking  into  view  the  entire  scope  of  the  Discipline,  and  the  views 
expressed  by  Bishop  Baker,  and  others,  it  would  seem  that  pro- 
ceedings, instituted  for  the  trial  of  a  bishop,  traveling  preacher, 
other  preacher,  or  member,  have  been  regarded  as  analogous  to 
a  trial  for  crime  in  our  civil  courts ;  and  this  view  is  not  wholly 
without  reason.  The  prosecution  is  commenced  and  carried  on^ 
or  it  ought  to  be  at  least,  in  the  name  and  by  the  authority  of  the 
Church,  for  the  vindication,  not  of  private  rights,  nor  for  th 
redress  of  private  wrongs,  but  for  the  purpose  of  purging  the 
Church  from  all  moral  impurities,  so  that  she  may  be  in  prac- 
tice what  she  professes  to  be  in  theory,  the  bride  of  Christ.  W^ 
have  said  that  there  is  a  difference  to  be  observed  in  the  form  of 
procedure,  provided  that  we  follow  the  analogies  of  the  criminal 
law,  rather  than  the  civil.  By  the  criminal  law  a  greater  degree 
of  strictness  is  required  than  by  the  civil  law.  No  amendments 
are  allowed  to  be  made,  in  either  information  or  an  indictment ; 
the  one  being  presented  by  the  Attorney-general,  or  the  prose- 
cuting attorney,  and  the  other  by  a  grand  jury.  In  some  of  the 
States,  however,  the  rigor  of  the  common  law,  in  this  respect, 
has  been  changed,  and  amendments  are  now  allowed  tlie  same 
in  criminal  as  in  civil  procedure.     Probably  the  better  practice 


92 


ECCLESIASTICAL  LAW. 


would  be  to  allow  charges  and  specifications,  presented  to  the 
judicatory  of  the  Church,  to  be  amended.  Amendments  might 
often  avoid  the  necessity  of  vexatious  delays ;  for  if  a  complaint 
can  not  be  amended  when  it  is  defective,  the  objection  can  be 
ordinarily  obviated  by  the  dismissal  of  the  proceedings,  and  the 
institution  of  further  proceedings,  founded  upon  a  new  complaint. 

There  is  no  difference  in  the  rules  of  evidence  between  a 
civil  and  a  criminal  case,  except  in  this,  that  in  civil  cases  the 
jury  are  allowed  to  weigh  the  evidence,  and  to  render  their 
decision,  based  upon  a  preponderance  of  the  evidence;^  but  in 
criminal  cases  the  accused  is  entitled  to  every  reasonable  pre- 
sumption that  can  be  drawn  from  the  evidence  in  favor  of  his 
innocence;  and  he  should  not  be  convicted  unless  the  evidence 
is  so  strong  that  it  would  exclude  every  hypothesis  except 
that  of  the  guilt  of  the  accused ;  or,  in  other  words,  the  jury 
should  not,  in  a  criminal  case,  weigh  the  evidence ;  for  if  the  evi- 
dence is  of  such  a  character  that  it  is  required  to  be  weighed  by 
the  jury,  then  they  should  find  the  defendant  not  guilty. 

There  is  still  a  further  question  that  remains  to  be  considered, 
drawn  from  the  analogies  of  the  criminal  law,  and  that  is,  as  to 
the  effect  of  the  finding  of  the  committee.  It  is  a  rule,  recog- 
nized by  the  common  law,  and  made  a  part  of  the  organic  law  of 
almost  every  State  in  the  Union,  that  a  party  shall  not  be  put  in 
jeopardy  the  second  time  for  the  same  offense.^ 

Therefore,  a  plea  of  autrefois  acquit,  formerly  acquitted,  or 
autrefois  convict,  formerly  convicted,'  is  a  good  plea  in  bar  to  an 


^  United  States  v.  Winchester,  2  M'Lean,  135;  United  States  v.  M' Comb, 
5  M'Lean,  286. 

^  It  is  a  principle  prevailing  in  probably  every  system  of  jurisprudence,  cer- 
tainly in  ours,  that  when  a  matter  has  been  fairly  passed  to  final  adjudication, 
it  can  not  be  litigated  in  any  fresh  suit,  between  the  same  parties ;  but  accord- 
ing to  the  general  doctrine,  this  rule  does  not  prevent  a  re-hearing  of  the  cause 
in  proper  circumstances.  In  the  criminal  law,  however,  the  general  right  to  a 
re-hearing  is  restrained  by  another  principle  embodied  in  the  common-law  maxim, 
"  That,"  as  Blackstone  expresses  it,  "  no  man  is  to  be  brought  into  jeopardy  of 
his  life  more  than  once  for  the  same  offense."     I  Bishop's  Criminal  Law,  82G. 

*  Chitty  lays  down  these  rules:  That  to  entitle  a  defendant  to  this  plea,  it  is 
necessary  that  the  crime  charged  in  the  first  and  second  indictments  should  be 
the  same ;  and  that  if  the  crimes  charged  in  the  first  and  second  indictments 
are  so  distinct  that  evidence  of  one  will  not  support  the  other,  a  conviction 
or  acquittal  of  one  will  not  bar  a  prosecution  of  the  other.     I  Chitty's  Criminal 


IS  AN  ECCLESIASTICAL  TRIAL  CRIMINAL  IN  CHARACTER?    93 

indictment.  And  the  same  principle  ought  to  apply  in  case  of  a 
Church  trial  before  an  ecclesiastical  tribunal ;  though  it  was 
held,  in  one  case,  by  the  Supreme  Court  of  New  York,  that  it 
was  not  illegal  that  a  medical  society  should  consider  the  subject 
of  the  charges,  after  having  once  acted  in  the  matter,  without 
pronouncing  them  well  founded.  For  this  accusatory  power  is 
like  that  of  a  grand  jury,  and  it  is  undeniable  that  a  complaint 
may  be,  and  frequently  is,  referred  to  successive  grand  juries  ; 
and  the  fact  that  the  medical  society  acted  upon  extra  judicial 
information  is  an  additional  reason  why  they  should  not  be  pre- 
cluded from  a  second  inquiry  ;  but  whatever  doubt  there  may  be, 
as  to  the  legal  effect  of  a  Church  trial,  there  can  be  none  as  to 
the  fact  that  it  is  perfectly  competent  for  a  Church  tribunal  to 
treat  their  own  adjudications  as  final,  and  the  civil  court  would 
follow  their  decisions,  in  giving  construction  to  their  own  canons  ; 
and  such  we  understand  to  be  the  rule  of  construction,  as  settled 
in  the  Methodist  Episcopal  Church;  though  the  same  conclusive- 
ness of  character  is  not  given,  even  by  the  Church  or  by  the 
common  law,  where  it  is  not  a  trial,  but  a  mere  preliminary 
investigation.  ^ 

Law,  456.  Another  rule  is  stated  to  be,  that  unless  the  first  indictment  is  such 
that  the  defendant  might  have  been  convicted  upon  proof  of  the  facts  alleged 
in  the  first  indictment,  an  acquittal  or  conviction  on  the  first  can  be  no  bar  to 
the  second.  2  Russell  on  Crimes,  41.  Archbold  states  this  rule  as  follows: 
"  The  true  test,  by  which  the  question  whether  the  plea  is  a  bar  in  any  par- 
ticular case,  may  be  tried,  is,  whether  the  evidence  necessary  to  support  the 
second  indictment  would  have  been  sufiScient  to  procure  a  legal  conviction 
upon  the  first." 

But  the  authorities  cited,  and  the  illustrations  given  in  support  of  the  rule 
as  stated,  all  show,  that  to  make  the  plea  a  bar,  proof  of  the  facts  alleged  in 
the  second  endictment  must  be  sufficient,  in  law,  to  have  warranted  a  convic- 
tion on  the  first  indictment  of  the  same  offense  charged  in  the  second,  and  not 
of  a  different  offense.  Archbold's  Grim.  PL,  82,  and  cases  there  cited;  or,  in 
other  words,  the  party  must  have  been  in  peril  of  being  convicted  upon  the  first 
prosecution  of  the  same  offense  described  in  the  last.  Greenleaf  states  the  rule 
to  be :  That  if  the  defendant,  upon  the  first  indictment,  could  not  have  been 
convicted  of  the  offense  described  in  the  second,  then  an  acquittal  or  conviction 
upon  the  former  is  no  bar  to  the  latter.  3  Greenleaf  Ev.,  Sec.  36.  And  this  we 
hold  to  be  the  true  rule.  If  the  defendant  could  not,  by  any  legal  possibility, 
have  been  convicted  on  the  former  prosecution  of  the  offense  charged  in  the 
second,  he  can  in  no  just  sense  be  said  to  be  in  peril  of  a  second  conviction  on 
the  same  offense.     Freeland  v.  The  People,  16  Ills.,  382. 

^  When  the  grand  jury  have  heard  the  evidence,  if  they  think  it  a  groundless 


94  ECCLESIASTICAL  LAW.  . 

We  have  said  that  under  tlie  liuniane  provisions  of  the  com- 
mon law  a  party  was  not  liable  to  be  put  in  jeopardy  the  sec- 
ond time  for  the  same  offense.  As  this  provision  of  law  was 
adopted  for  the  benefit  of  defendants,  they  are  therefore  at  lib- 
erty to  waive  their  rights  under  it.  The  doctrine  that  a  man 
may  waive  a  legal  privilege  in  his  favor  is  familiar  in  every  de- 
partment of  law.  For  example,  where  a  statute  directs  in  what 
county  a  defendant  shall  be  sued,  he  may  still,  if  sued  on  a 
private  demand  in  the  wrong  county,  answer  there  to  the  action 
on  its  merits,  and  by  answering  he  waives  his  opportunity  to 
object.  Anciently  prisoners  were  denied  counsel  in  their  trials, 
and  then  the  judges  counseled  them  to  the  extent  of  their  doing 
things  prejudicial,  except  to  plead  guilty.  After  the  practice 
was  changed  as  to  counsel,  the  court  decided  that  even  in  capital 
trials,  defendants  acting  by  legal  advice  under  the  supervision 
of  the  tribunal,  might  so  consent  to  an  arrangement,  manifestly 
for  their  benefit,  as  afterward  to  be  bound  by  it. 

The  doctrine  that  a  man  is  not  liable  to  be  tried  twice  for  the 
same  offense  is  subject  to  certain  qualifications;  where  a  person 
has  offended  against  two  governments,  although  the  offense  con- 
sisted of  a  single  act,  he  is  liable  to  be  be  punished  by  both.^ 

accusation,  they  used  formerly  to  indorse  on  the  back  of  the  bill  ^^  ignoramus," 
or,  we  know  nothing ;  intimating  that  though  the  facts  possibly  might  be  true,  that 
truth  did  not  appear  to  them,  but  now  they  assert,  in  England,  more  absolutely, 
"not  a  true  bill."  or  (which  is  the  better  way)  "not  found,"  and  then  the  party 
is  discharged  without  further  answer.  But  a  fresh  bill  may  afterwards  be  pre- 
ferred to  a  subsequent  grand  jury.  If  they  are  satisfied  with  the  truth  of  the 
accusation,  they  indorse  upon  it,  "a  true  bill;"  anciently,  ^^hillavera."  The 
indictment  is  then  said  to  be  found,  and  the  party  stands  indicted.  But  to  find 
a  bill,  there  must  be  at  least  twelve  of  the  jury  agree ;  for  so  tender  is  the  law 
of  England  of  the  lives  of  the  subjects,  that  no  man  can  be  convicted,  at  the 
suit  of  the  King,  of  any  capital  offense,  unless  by  the  unanimous  voice  of  twenty- 
four  of  his  equals  and  neighbors;  that  is,  by  twelve  at  least  of  a  grand  jury,  in  the 
first  place,  assenting  to  the  accusation,  and  afterwards  by  the  whole  petit  jury  of 
twelve  more  finding  him  guilty  upon  his  trial ;  but  if  twelve  of  the  grand  jury  as- 
sent, it  is  a  good  presentment,  though  some  of  the  rest  disagree;  and  the  indict- 
ment, when  so  found,  is  publicly  delivered  to  the  court.  4  Blackstone's  Com.  305-(). 
'In  a  case  on  the  circuit  before  the  late  Chief-Justice  Taney,  of  the  Supreme 
Court,  where  there  was  a  conviction  of  the  defendant  for  robbing  the  United 
States  mail,  this  learned  judge  said:  "As  these  letters  with  the  money  within 
them  were  stolen  in  Virginia,  the  party  might  undoubtedly  have  been  punished 
in  the  State  tribunals,  according  to  the  laws  of  the  State,  without  any  reference 


IS  AN  ECCLESIASTICAL  TRIAL  CRIMINAL  IN  CHARACTER?    95 

Where  the  offense  involves  a  civil  injury,  the  party  inflicting 
such  injury  is  liable  to  be  prosecuted  criminally  for  the  offense, 
and  proceeded  against  civilly,  as  we  have  previously  shown,  by 
the  party  injured.  The  meaning  of  the  rule  is,  that  the  party 
shall  not  be  liable  to  be  twice  prosecuted  criminally  by  the  same 
government  for  the  same  offense.  A  member  of  the  Church  is 
liable,  where  he  has  committed  an  offense,  to  be  prosecuted  crim- 
inally before  the  civil  court,  sued  by  the  party  injured  for  the 
damage  that  such  party  has  sustained,  and  proceeded  against 
canonically.  And  the  one  is  no  bar  to  the  other.  Neither  are 
the  proceedings  in  the  one  case,  or  before  one  of  the  tribunals, 

to  the  post-office,  or  to  the  act  of  Congress;  because,  from  the  nature  of  our 
Government,  the  same  act  may  be  an  offense  against  the  laws  of  the  United 
States,  and  also  of  a  State,  and  be  punishable  in  both.  And  the  punishment  in 
one  sovereignty  is  no  bar  to  his  punishment  in  the  other.  Yet  in  all  civilized 
countries,  it  is  recognized  as  a  fundamental  principle  of  justice,  that  a  man 
ought  not  to  be  punished  twice  for  the  same  offense.  And  if  this  party  had 
been  punished  for  the  larceny  by  a  State  tribunal,  the  Court  would  have  felt  it  to 
be  its  duty  to  suspend  sentence,  and  to  represent  the  facts  to  the  President,  to 
give  him  an  opportunity  of  ordering  a  nolle  prosequi  or  granting  a  pardon." 
United  States  v.  Ami/,  14  Md.  149,  note  I52„ 

An  offense,  in  its  legal  signification,  means  the  transgression  of  a  law.  A 
man  may  be  compelled  to  make  reparation  in  damages  to  the  injured  party,  and 
be  liable  also  to  punishment  for  a  breach  of  the  public  peace,  in  consequence  of 
the  same  act;  and  may  be  said  in  common  parlance,  to  be  twice  punished  for 
the  same  offense.  Every  citizen  of  the  United  States  is  also  a  citizen  of  a 
State  or  Territory.  He  may  be  said  to  owe  allegiance  to  two  sovereigns,  and 
may  be  liable  to  punishment  for  an  infraction  of  the  laws  of  either.  The  same 
act  may  be  an  offense  or  tran.sgresslon  of  the  laws  of  both.  Thus  an  assault 
upon  the  mai-shal  of  the  United  States,  and  hindering  him  in  the  execution  of 
legal  process,  is  a  high  offense  against  the  United  States,  for  which  the  perpe- 
trator is  liable  to  punishment;  and  the  same  act  may  also  be  a  gross  breach  of 
the  peace  of  the  State,  a  riot,  assault,  or  a  murder,  and  subject  the  same  per- 
son to  a  punishment  under  the  State  laws,  for  a  misdemeanor  or  felony.  That 
either  or  both  may  (if  they  see  fit),  punish  such  an  offender,  can  not  be  doubted. 
Yet  it  can  not  be  truly  averred  that  the  offender  has  been  twice  punished  for 
the  same  offense;  but  only  that  by  one  act  he  has  committed  two  offenses,  for 
each  of  which  he  is  justly  punishable.  He  could  not  plead  the  punishment  by 
one  in  bar  to  a  conviction  by  the  other;  consequently,  this  Court  has  decided,  in 
the  case  of  Fox  v.  The  State  of  Ohio,  5  How.  4.S2,  that  a  State  may  punish  the 
offense  of  uttering  or  passing  false  coin  as  a  cheat  or  fraud  practiced  on  its 
citizens;  and,  in  the  case  of  The  United  States  v.  Marigold,  0  How.  560,  that 
Congress,  in  the  proper  exercise  of  its  authority,  may  punish  the  same  act  as  an 
offense  against  the  United  States,  Moore  v.  The  People  of  the  State  of  Illinois, 
20  Curtis,  9. 


96  ECCLESIASTICAL  LAW. 

admissible  in  evidence  before  the  other,  except  so  far  as  it  may 
be  competent  to  prove  the  acts,  or  the  admissions  of  the  party. 
For  it  is  well  settled  that  before  verdicts  and  judgments  are  ad- 
missible in  evidence,  they  must  be  between  the  same  parties, 
and  have  reference  to  the  same  subject  matter.  In  the  case  -we 
have  instanced,  while  the  subject  matter  is  the  same  yet  the 
parties  are  different,  the  people  or  the  Government  are  the  com- 
plainants in  a  criminal  prosecution ;  the  Church  in  an  ecclesi- 
astical investigation  and  the  party  injured  in  a  civil  suit  for 
compensation. 

CHAPTER  XIX. 

LIMITATIONS   ON   PROSECUTIONS. 

Bishop  Baker,  in  his  work  on  the  Discipline,  says :  "  That 
any  crime  committed,  at  however  remote  a  period,  if  it  be  wdthin 
the  time  in  which  the  accused  has  been  a  member  of  the  Church, 
is  indictable,  but  it  can  not  be  extended  to  any  period  beyond 
membership."  While  this  may  be  technically  true,  and  while  we 
do  not  propose  to  call  in  question  directly  the  correctness  of  this 
rule  as  it  is  laid  down  by  so  eminent  an  authority,  yet  the  remote- 
ness of  time  at  which  a  crime  is  alleged  to  have  been  committed 
should  always  be  taken  into  consideration  by  the  administrators 
of  the  Discipline ;  it  is  probably  true  that  the  bar  of  the  statutes 
of  limitations,  as  it  has  been  fixed  by  statute  in  every  State  of 
the  Union,  and  in  England,  would  not  constitute  a  technical 
estoppel ;  but  the  objection  that  if  .the  party  was  prosecuted  be- 
fore the  civil  courts  for  the  same  offense  he  could  not  be  found 
guilty  should  have  great  weight  in  determining  the  question  of 
guilt  or  innocence  in  the  mind  of  the  Committee. 

These  statutes  are  not  wholly  arbitrary,  as  many  imagine, 
but  owing  to  the  fact  that  remoteness  of  time  and  the  infirmity 
of  human  memory  often  obscure  the  transaction,  and  obliter- 
ate many  of  the  traces  of  fact  that  give  tone  and  character  to 
the  principal  facts,  experience  has  proved  that  there  ought  to  be 
some  limitation.  We  suggest,  without  laying  it  down  as  a  rule 
to  govern  in  the  administration  of  ecclesiastical  law,  that  while  the 
Church  would  not  be  bound  to  adopt  the  analogies  of  the  law  in 
this  respect,  it   might  be  well  to   adopt  the  rule  recognized  in 


\ 


LIMITATIONS  ON  PROSECUTIONS.  97 

courts  of  equity,  which  is,  that  equity  adopts  and  follows  the 
rules  of  law  in  all  cases  to  which  those  rules  may  in  terms  be 
applicable,  and  that  it  adopts,  in  the  administration  in  cases  of  an 
equitable  nature,  the  analogies  furnished  by  rules  of  law;  thus 
where  a  rule,  either  of  the  common  or  the  statute  law  is  direct,  and 
governs  the  case  with  all  its  particular  circumstances,  a  court 
of  equity  is  as  much  bound  by  a  statute  of  limitation  as  a  court 
of  law,  and  can  as  little  justify  a  departure  from  it.  Thus,  al- 
though the  statutes  of  limitation  are,  in  their  terms,  applicable  to 
the  courts  of  law  only,  yet  equity  by  analogy  acts  upon  them, 
and  refuses  relief  imder  like  circumstances.  It  is  said  that 
equity  always  discountenances  laches  ;  and  holds  that  laches  is 
presumable  in  cases  where  it  is  positively  declared  at  law. 
There  are,  however,  cases  in  which  the  statutes  would  be  a  bar 
at  law,  but  in  which  equity  would,  notwithstanding  the  legal  bar, 
grant  relief. 

And  on  the  other  hand  there  are  cases  where  the  statutes 
would  not  be  a  bar  at  law,  but  where  equity  would  be  justiiied  in 
refusing  relief.  Upon  examination  it  will  be  found  that  such 
cases  rest  upon  peculiar  circumstances,  which  courts  of  equity 
can  take  notice  of,  but  which  courts  of  law  would  be  bound  by 
the  positive  bar  of  the  statute.  Thus,  where  the  demand  is  not 
of  a  legal  nature;  or  where  the  offense  in  an  ecclesiastical  court 
is  not  one  that  is  malum  in  se,  but  is  purely  of  an  equitable  or 
of  an  ecclesiastical  character,  or  where  the  bar  of  the  statute  is 
inapplicable,  courts  of  equity,  and  the  tribunals  of  the  Church, 
may  employ  another  rule,  founded  sometimes  upon  the  analo- 
gies of  the  law,  where  such  analogies  exist,  and  sometimes  upon 
their  own  inherent  doctrine,  not  to  entertain  stale  or  antiquated 
matters,  nor  to  encourage  laches  and  negligence.  These  rules  arc 
founded  upon  considerations  of  public  policy,  from  the  difficulty 
of  doing  entire  justice,  when  the  original  transactions  have  be- 
come obscured  by  time,  and  the  evidence  may  be  lost;  but, 
under  peculiar  circumstances,  however,  excusing  or  justifying 
the  delay,  courts  of  equity,  and  ecclesiastical  courts,  will  not 
refuse  an  investigation  in  furtherance  of  justice.^ 

1  In  the  case  of  Eaes  v.  Bogart,  2  John.  Cas.  432,  the  Court  of  Errors  con- 
firmed a  decree  of  this  Court,  dismissing  a  bill  for  an  account  by  reason  of  delay 
and  lapse  of  time,  and  the  death  of  parties,  and  the  probable  loss  of  papers, 


98  ECCLESIASTICAL  LAW. 


"  Charges  of  immorality  against  preachers  should  not  be  re- 
stricted to  the  time  ■which  they  have  been  in  the  ministry,"  says 
Bishop  Baker  in  his  -work  on  the  Discipline  ;  and  this  we  think 
is  right ;  but  in  the  administration  of  the  Discipline,  on  this  point, 
a  very  important  question  arises :  Can  a  minister  be  tried  by  lay 
members  for  an  offense  that  he  committed  before  he  was  licensed 
to  preach,  or  should  he  be  tried  by  the  conference  of  which 
he  is  a  member  at  the  time  the  charges  are  preferred,  without 
any  reference  to  the  relation  he  sustained  to  the  Church  at  the 
time  the  charge  alleges  the  offense  to  have  been  committed!  It  is 
difficult  to  find  any  direct  authority  upon  this  question.  A  very 
strong  argument  may  be  interposed  in  favor  of  the  jurisdiction 
of  the  conference,  as  that  body  is  both  quasi  judicial  and  delib- 
erative;  and  as  such,  clothed  with  the  sovereignty  of  the  Church, 
and  specially  charged  with  the  care  of  all  that  is  dear  to  a  travel- 
ing minister.  Besides,  it  is  usually  composed  of  the  most  distin- 
guished citizens,  selected  on  account  of  their  purity  of  life  and 
ability.  Again,  their  actions  and  deliberations  are  open  to 
public  inspection  and  criticism.  On  the  other  hand,  it  can  be 
urged  with  equal  propi'iety  and  cogency  of  reason,  that  the  Dis- 
cipline has  divided  the  administration  of  the  Church  into  differ- 
ent departments.  It  has  rendered  a  traveling  minister  or  preacher 
amenable  for  offenses  that  he  has  committed  while  he  sustained 
that  relation  to  the  conference  of  which  he  is  a  member.  And  if 
he  is  only  on  trial  when  charged  with  the  commission  of  an  offense, 
he  is  to  be  tried  by  the  quarterly  conference ;  or  if  a  local  preacher, 
deacon,  or  elder,  by  the  district  or  quai'terly  conference ;  and  if 

though  the  real  laches  in  that  case  was  only  for  eleven  years.  The  ease  of 
Siw't  V.  Mellish,  2  Atk.  GIO,  is  a  strong  one  to  show  the  unwillingness  of  the 
court  to  decree  an  account,  when  the  transactions  have  become  obscure  and 
entangled  by  delay  and  time.  There  is  no  certain  and  definite  rule  on  tlie  sub- 
ject. Each  case  must  depend  upon  the  exercise  of  a  sound  discretion  arising 
out  of  the  circumstances,  Itayncr  v.  Pearall,  3  John.  Ch.  586. 

Where  the  parties  lived  in  the  same  county,  and  without  accounting  for  the 
delay,  the  plaintiff  suffered  a  period  of  twenty-six  years  to  elapse  from  the  ter- 
mination of  the  American  war  till  the  time  of  filing  his  bill,  it  would  not  be 
sound  discretion  to  overhaul  accounts  in  favor  of  a  party  who  has  slept  on  his 
rights  for  such  a  length  of  time ;  especially  against  the  representatives  of  the 
other  party  who  have  no  knowledge  of  the  original  transaction.  It  is  against 
the  principles  of  public  policy  to  require  an  account  after  the  plaintiff  has  been 
guilty  of  so  great  laches,  Ellison  v.  MoJ/'att,  et  al.,  1  John.  Ch.  50. 


LIMITATIONS  ON  PROSECUTIONS.  99 

he  is  simply  a  lay  member,  lie  is  to  be  tried  before  his  peers  as 
laymen.  The  fact  that  his  relationship  is  changed  can  not,  by 
force  of  such  change,  deprive  the  administrators  of  the  Discipline, 
having  jurisdiction  of  him,  of  their  right  to  try  him,  and  pro- 
nounce sentence  upon  him  the  same  as  though  he  had  continued 
his  relationship  to  the  society ;  unless  it  be  that  the  change  of 
relationship  produces  a  change  of  membership  ;  for,  as  we  have 
previously  seen,  membership  of  the  Church  and  of  the  society  is 
necessary  to  confer  jurisdiction.  And  if  his  membership  has 
been  transferred  from  the  local  society  to  the  conference,  it  is 
difficult  to  see  how  he  can  be  tried  at  all,  unless  he  is  amenable 
to  the  conference.  There  is  an  analogy  for  this  view  of  the 
question  to  be  drawn  from  the  construction  that  has  been 
placed  on  the  law  of  impeachment  under  the  Constitution  of  the 
United  States.  ^'  There  seems,"  says  Mr.  Justice  Story,  "  to  be 
a  peculiar  propriety,  in  a  Republican  Government  at  least,  in 
confining  the  impeaching  power  to  persons  holding  office.  In 
such  a  government  all  the  citizens  are  equal,  and  ought  to  have 
the  same  security  of  a  trial  by  jury  for  all  crimes  and  offenses 
laid  to  their  charge  when  not  holding  any  official  character."  ^ 

^  The  Fourth  Section  of  the  Second  Article  of  the  Constitution  of  the  United 
States  provides  that  the  President,  Vice-President,  and  all  civil  officers  of  the 
United  States  shall  be  removed  from  office  on  impeachment  for  and  conviction 
of  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 

From  this  clause  it  appears  that  the  remedy  by  impeachment  is  strictly 
confined  to  civil  officers  of  the  United  States,  including  the  President  and  Vice- 
President.  In  this  respect  it  differs  materially  from  the  law  and  practice  of 
Great  Britain.  In  that  kingdom,  all  the  king's  subjects,  whether  peers  or  com- 
moners, are  impeachable  in  Pai'liament;  though  it  is  asserted  that  the  com- 
moners can  not  now  be  impeached  for  capital  offenses,  but  for  misdemeanors 
only.  Such  kind  of  misdeeds,  however,  as  peculiarly  injure  the  commonwealth 
by  the  abuse  of  high  offices  of  trust,  are  the  most  proper,  and  have  been  the 
most  usual  grounds  for  this  kind  of  prosecution  in  Parliament.  There  seems  a 
peculiar  propriety,  in  a  Republican  Government  at  least,  in  confining  the  im- 
peaching power  to  persons  holding  office.  In  such  a  government  all  the  citizens 
are  equal,  and  ought  to  have  the  same  security  of  a  trial  by  jury  for  all  crimes 
and  offenses  laid  to  their  charge,  when  not  holding  any  official  character.  To 
subject  them  to  impeachment  would  not  only  be  extremely  oppressive  and  expen- 
sive, but  would  endanger  their  lives  and  liberties,  by  exposing  them,  against 
their  will,  to  persecution  for  their  conduct  in  exercising  their  political  rights  and 
privileges.  Dear  as  the  trial  by  jury  justly  is,  in  civil  cases,  its  value  as  a  pro- 
tection against  the  resentment  and  violence  of  rulers  and  factions,  in  criminal 


100  ECCLESIASTICAL  LAW. 


In  the  case  of  William  Blount,  who  was  ai-raigned  before  the 
Senate  of  the  United  States,  in  Philadelphia,  in  1799,  the  ques- 
tion was  distinctly  presented ;  whether,  under  the  Constitution  of 
the  United  States,  any  acts  are  impeachable  unless  committed 
under  color  of  office,  and  whether  the  party  can  be  impeached 
therefor  after  he  has  ceased  to  hold  office.  Belknap,  Secretary 
of  War,  tried  before  the  Senate  of  the  United  States,  in  1876, 
charged  with  bribery  and  corruption,  was  defended  upon  this 
latter  ground  ;  that  the  Senate  of  the  United  States  had  no  juris- 
diction, his  resignation  having  been  tendered  and  accepted  before 
the  Articles  of  Impeachment  were  preferred.  The  Senate  divided 
in  opinion,  and  no  direct  decision  was  reached  upon  this  ques- 
tion, until  after  a  hearing  on  the  merits,  when  he  was  acquitted 
for  want  of  jurisdiction.  A  learned  commentator  seems  to  have 
taken  it  for  granted,  that  the  liability  of  impeachment  extends  to 
all  who  have  been,  as  well  as  to  all  who  are,  in  public  office.^  The 
same  learned  commentator,  in  speaking  of  the  character  of 
offenses,  says :  "It  is  confined  in  general  to  those  offenses  which 
can  not  be  committed  equally  by  a  private  person ;  but  that  such 
offenses  as  murder,  perjury,  robbery,  and  indeed  all  offenses  not 
immediately  connected  with  the  office,  except  they  are  expressly 
named,  can  not  be  regularly  inquired  into,  except  for  the  purpose 
of  expelling  the  member." 

The  offense  of  a  minister,  while  he  occupies  that  relation,  is 

prosecutions,  makes  it  inestimable.  It  is  there,  and  there  only,  that  a  citizen,  in 
the  .sympathy,  the  impartiality,  the  intelligence,  and  the  incorruptible  integrity  of 
his  fellows  impanelled  to  try  the  accusation,  may  indulge  a  well  founded  confi- 
dence to  sustain  and  cheer  him.  If  he  should  choose  to  accept  office,  he  would 
voluntarily  incur  all  the  additional  responsibility  growing  out  of  it.  If  im- 
peached for  his  conduct,  while  in  office,  he  could  not  justly  complain,  since  he 
was  placed  in  that  predicament  by  his  own  choice;  and,  in  accepting  office,  he 
submitted  to  all  the  consequences.  Indeed,  the  moment  it  was  decided,  that 
the  judgments  upon  impeachments  should  bo  limited  to  removal  and  disqualifi- 
cation from  office,  it  followed  as  a  natural  result,  that  it  ought  not  to  reach  any 
but  officers  of  the  United  States.  It  seems  to  have  been  the  original  object  of 
the  friends  of  the  national  government  to  confine  it  to  these  limits;  for  in  the 
original  resolutions  proposed  to  the  convention,  and  in  all  the  subsequent  pro- 
ceedings, the  power  was  expres.sly  limited  to  national  officers.  1  Story  on 
Con.  Sec.  790. 

'  Rawle  on  the  Constitution,   Ch.  22,  page  213.     See,  also,  Blount's  Trial, 
pages  49-50. 


LIMITATIOxMS  ON  PROSECUTIONS.  101 

of  a  graver  character  than  the  offense  of  a  mere  member.  Tlie 
minister  not  only  offends  against  the  law  of  God  and  the  canons 
of  the  Church,  but  he  is  guilty  of  the  violation  of  a  sacred  trust, 
that  is  conferred  upon  him  when  he  takes  his  vows  of  ordination ; 
and  no  man  who  has  been  guilty  of  an  offense  ought  to  aspire  to 
the  position  of  a  minister  of  the  Gospel,  and  to  admission  into 
the  conference,  without  repentance  and  confession;  so  that  the 
conference,  when  he  is  received,  would  be  cognizable  of  the 
facts;  but  where  he  conceals  such  facts,  which,  if  known,  would 
have  excluded  him  from  admission,  he  is  guilty  of  a  moral  fraud 
and  imposition,  and  the  conference,  for  the  purpose  of  dealing  with 
him,  Avould  be  justified  in  regarding  the  crime  with  which  he  stands 
charged  as  a  continuing  one,  so  as  to  render  him  amenable  to 
their  jurisdiction.  If  the  other  construction,  growing  out  of  the 
question  that  we  have  been  considering,  should  be  adopted,  and 
a  preacher  can  be  tried  and  convicted  by  a  lay  tribunal  for  an 
offense  that  he  has  committed  while  he  sustained  a  lay  relation  to 
the  Church,  what  is  the  effect  of  such  conviction  upon  him,  with 
reference  to  the  relation  that  he  sustains  to  the  conference  ?  is 
the  record  of  conviction  conclusive  evidence  of  his  guilt  ?  or 
may  the  conference,  notwithstanding  the  finding  of  the  lay  com- 
mittee or  quarterly  conference,  inquire  into  the  matter  de  novo  f 
By  analogy  to  the  rules  of  law,  we  think  that  the  action  of  the 
committee  ought  to  be  held  conclusive.  Such  being  the  fact,  the 
conference  would  have  but  one  duty  to  perform,  and  that  would 
be  to  suspend  him  from  all  ministerial  services  and  Church  priv- 
ileges. Neither  under  such  circumstances  could  the  conference 
review  the  action  of  the  committee  or  quarterly  conference,  ex- 
cept to  the  extent  of  submitting  the  questions  of  law,  decided  by 
the  quarterly  conference,  to  the  bishop  while  presiding  in  the 
annual  conference. 

There  is  still  another  question,  growing  out  of  the  complex 
relation  of  one  conference  with  another,  that  is  worthy  of  consid- 
eration. In  analyzing  the  judicial  powers  conferred  upon  the 
different  officers  and  conferences  by  the  Discipline,  there  is  a  diffi- 
culty in  determining  who  shall  have  jurisdiction  over  a  traveling 
minister  or  preacher  who  has  taken  a  transfer  from  one  confer- 
ence to  another;  or  where  a  member  has  changed  his  member- 
ship from  one  society  to  another,  where  the  offense  is  alleged  to 


102  ECCLESIASTICAL  LAW. 

have  been  committed  before  such  transfer  or  change  was  effected. 
We  have  said,  on  the  authority  of  Bishop  Baker,  that  the  party 
accused  is  liable  to  be  tried  for  the  offense.  But  where  tried? 
By  tlie  original  society  or  conference  against  whom  he  has  im- 
mediately offended,^  or  by  the  society  or  conference  having 
jurisdiction  over  him  at  the  time  the  charges  are  preferred. 
There  is  great  propriety,  we  think,  in  holding  him  for  trial  before 
the  society  or  conference  Avhere  the  offense  was  committed,  but 
in  doing  so,  we  necessarily  encounter  the  very  difficulties  that 
we  have  been  considering.  These  questions  have  not  often 
arisen  in  practice,  and  yet  it  is  evident  that  they  are  liable  to 
arise  at  any  time ;  and  it  is  equally  evident  that  further  Church 
legislation  is  requisite  in  order  to  a  proper  solution  of  the  diffi- 
culties. It  is  a  wise  legislator  that  anticipates  and  provides  for 
the  solution  of  difficulties  before  they  arise. 


CHAPTER  XX. 

PROCEEDINGS   PRELIMINARY   TO    A   TRIAL. 

If  a  preacher  or  a  member  is  accused  of  a  crime,  cognizable 
before  the  regular  constituted  authorities  of  the  Church,  regular 
charges  and  specifications  should  be  made  out  against  him  in  due 
form,   and  when   so  made   out,   the   charges  and  specifications 

^ It  is  a  principle  clearly  recognized  by  the  Discipline  of  our  Church,  that 
no  member  in  full  connection  can  be  dropped  or  expelled  by  the  preacher  in 
charge  until  the  select  committee  or  society  of  which  he  is  a  member  declares 
in  due  form  that  he  is  guilty  of  tlie  violation  of  some  Scriptural  or  moral  prin- 
ciple, or  some  requisition  of  Church  covenants  The  restrictive  rules  guar- 
antee both  to  our  ministers  and  members  the  privilege  of  trial  and  appeal; 
and  the  General  Conference  has  explicitly  declared  that  it  is  the  right  of  every 
member  of  the  Methodist  Episcopal  Church  to  remain  in  said  Church  unless 
guilty  of  tlie  violation  of  its  rules;  and  there  exists  no  power  in  the  ministry, 
either  individually  or  collectively,  to  deprive  any  member  of  said  right.  (Gen- 
eral Conference  Journal,  1848,  page  73.)  The  fact  that  the  member  was  guilty 
of  the  violation  of  the  rules  of  the  Church,  must  be  formally  proved  before  the 
body  holding  original  jurisdiction  in  the  case.  If  the  administrator  personally 
knows  that  the  charges  are  Kul)stantially  true  it  does  not  authorize  him  to  re- 
move the  accused  member.  Tlie  law  recognizes  no  member  as  guilty  until  the 
evidence  of  guilt  is  duly  presented  to  the  proper  tribunal,  and  the  verdict  is  ren- 
dered.   Baker  on  the  Discipline,  92-93. 


PROCEEDINGS  PRELIMINARY  TO  A  TRIAL.  103 

slioiiM  1)0  sig^ned,  either  by  a  member  of  the  conference  or  of 
the  Church.  The  charges  and  specifications,  when  thus  made 
out  and  signed,  should  be  presented  to  the  preacher  in  charge 
of  the  circuit  or  station,  or  other  presiding  officer  selected  to 
preside  at  the  trial.  Until  they  are  so  presented,  such  preacher 
in  charge  has  no  authority  to  take  any  step  or  proceed  in  any 
manner  with  the  investigation.  Such  charge  or  charges  are 
jurisdictional,  and  the  foundation  upon  which  the  investigation  is 
authorized.  If  the  charges  and  specifications  are  insufficient,  the 
preacher  may  disregard  them  or  direct  them  to  be  put  in  form. 

The  charges  should  be  drawn  so  as  to  indicate  the  offense,  or 
crime,  that  the  accused  member  is  charged  with  being  guilty  of. 
Each  charge  should  regularly  be  accompanied  with  one  or  more 
specifications,  setting  forth  the  particular  offense,  in  such  a  man- 
ner as  to  apprise  the  party  of  the  nature  and  character  of  the 
crime  alleged  against  him;  the  same  particularity  is  not  requisite 
in  the  preparation  of  charges  and  specifications,  as  by  law  is  re- 
quired in  an  indictment.  The  same  charge  may  be  accom- 
panied Avith  several  specifications,  but  each  specification,  in 
order  to  be  legally  sustainable,  must  be  germane  to  the  charge. 
It  need  not  charge  an  offense  of  equal  degree  ;  thus,  under  the 
charge  of  murder,  one  specification  may  charge  the  killing  to  be 
with  malice  aforethought,  another  specification  may  be  a  charge 
of  killing  without  malice  aforethought.  In  our  civil  courts  two 
or  more  offenses  are  not  joinable  in  one  indictment,  except  that 
they  admit  of  the  same  character  of  trial  and  punishment. 
Thus,  a  man  may  be  indicted  for  selling  intoxicating  liquors  to 
two  or  more  persons  on  different  days,  and  all  of  the  offenses  may 
be  included  in  the  same  indictment ;  but  a  man  can  not  be  con- 
victed on  the  same  indictment  for  selling  intoxicating  liquors 
without  a  license  upon  one  count,  and  for  larceny  upon  another; 
but  he  may  be  indicted  in  one  count  for  burglary,  and  in  another 
count  of  the  same  indictment,  for  larceny,  provided  the  larceny 
accompanied  the  burglary.  In  a  Church  trial,  however,  no  such 
nice  shades  of  distinction  should  be  recognized ;  a  complaint 
charging  different  offenses  would  undoubtedly  be  held  sutHcient, 
if  the  complaint  was  in  other  respects  regular  and  legal. 

After  the  complaint  is  prepared  and  signed,  the  presiding 
officer  or  preacher  in  charge,  should  fix  a  time  and  place  for  the 


104  ECCLESIASTICAL  LAW. 

trial,  having  refei*ence  to  tlif  convenience  and  wishes  of  the  ac- 
cused, as  far  as  is  practicable.  The  accused  should  be  regularly 
notified  of  the  time  and  place  fixed  for  the  trial ;  the  notice 
should  be  in  writing,  and  accompanied  with  a  copy  of  the  com- 
plaint, or  charges  and  specifications.  The  notice  should  also  be 
served  by  copy,  a  sufficient  length  of  time  before  the  trial,  to 
enable  the  accused  member  to  come  prepared  for  trial  on  the  day 
fixed.  What  is  a  sufficient  length  of  time  is  not  determinable 
from  the  Discipline,  but  may  depend  upon  the  circumstances  of 
each  particular  case.  A  reasonable  notice  is  all  that  the  law 
requires.  If  the  accused  member  or  preacher  appears,  and  pro- 
ceeds to  trial,  without  a  formal  written  notice,  or  without  being 
served  with  a  copy  of  the  complaint,  his  doing  so  amounts  to  a 
waiver  of  all  irregularities  in  the  giving  of  the  notice,  or  of  the 
suflEiciency  of  the  notice.  All  objections  which  are  of  a  dilatory 
character,  and  which  do  not  lead  to  a  decision  of  the  merits  of 
the  controversy,  should  be  regularly  presented,  and  insisted  on 
in  apt  time,  that  is,  before  the  impaneling  of  the  committee 
and  the  conunencement  of  the  trial. 

By  the  common  law,  there  was  a  certain  order  in  which  every 
step,  from  the  time  of  filing  the  precipe  until  the  time  of  the 
rendition  of  final  judgment  was  required  to  be  successively 
taken.  And  we  will  briefly  refer  to  a  foAV  of  these,  in  order  to 
indicate  our  meaning :  First,  the  claim  of  conusance ;  Second, 
appearance;  Third,  oyer;  and,  Fourth,  imparlance.  The  first 
conusance  was,  in  form,  a  question  of  jurisdiction  between  two 
courts,  and  must  be  regularly  made  by  the  court  claiming  juris- 
diction on  the  first  appearance  of  the  parties,  and  before  the 
defendant  interposed  any  defense ;  for  if  the  claim  of  conusance 
was  not  put  in  before  a  defense  was  interposed,  it  was  regularly 
waived.  Again,  appearance  and  defense  was  the  next  step  in 
the  cause,  and  a  defendant  was  not  allowed  to  ask  oyer ;  that  is, 
that  the  deed,  or  other  writing  set  out  in  the  pleading,  be 
read  to  him  until  after  his  appearance  was  properly  entered; 
neither  was  he  entitled  to  an  imparlance,  which  was,  in  the  com- 
mon signification  of  the  term,  time  to  plead,  until  after  oyer; 
and  where  it  was  demanded  in  any  one  of  these  several  success- 
ive steps,  all  prior  privileges  were  held  to  be  waived.  Upon  the 
same  principle,  a  defendent  was  required,  if  he  desired,  to  plead 


PROCEEDINGS  PRELIMINARY  TO  A  TRIAL.  105 

several  successive  pleas  in  the  following  order:  First,  to  tbe\ 
jurisdiction  of  the  court ;  Second,  to  the  disability  of  the  per-  1 
son,  (1),  to  the  plaintiff;  (2),  to  the  det'endanTp(3),  to  the  I 
count  or  declaration;  (4),  to  the  writ;  and,  (5),  to  the  action  I 
itself,  in  bar  thereof.  ^ 

While  it  is  true,  that  in  a  Church  trial  the  defendant  is  re- 
quired to  make  no  formal  pleas,  yet  there  is  great  propriety  in 
adhering  to  the  fixed  rules,  indicating  the  order  in  which  business 
should  be  brought  forward,  so  as  to  avoid  all  mere  technicalities 
when  the  matter  comes  to  be  submitted  to  the  committee. 

After  all  the  preliminary  steps  have  been  taken  successively 
or  waived  by  the  parties,  either  expressly  or  impliedly,  before 
proceeding  to  the  trial,  either  party,  after  the  committee  has  been 
assembled  or  the  judicial  conference  convened,  in  the  presence  of 
the  presiding  officer,  or  the  preacher  in  charge,  unless  otherwise 
regulated  by  the  Discipline,  may  challenge  any  member  of  the 
committee  or  of  the  conference,  before  which  he  is  to  be  tried,  for 
cause.  And  in  some  instances  a  peremptory  challenge  of  a  cer- 
tain number  is  allowed  to  the  accused.  The  Discipline  uses  the 
term  "  challenge  for  cause,"  but  it  nowhere  defines,  or  attempts 
to  define,  the  term.  And  in  order  to  a  proper  understanding  of 
the  question  we  are  compelled  to  have  recourse  to  the  common 
law.  The  simple  fact  that  the  accused  is  not  satisfied  with  the 
committee,  or  any  member  thereof,  is  not  a  ground  of  challenge 
for  cause  within  the  meaning  of  the  Discipline  ;  but  if  a  member 
of  the  committee  is  related,  either  by  blood  or  marriage,  to  either 
of  the  parties,  or  if  a  member  of  the  committee  was  a  member 
of  the  general  or  annual  conference,  or  of  a  district  or  quarterly 
conference,  such  fact  Avould  constitute  a  good  ground  for  ''  chal- 
lenge for  cause ; "  or  if  a  member  of  the  committee  had  heard  a 
statement,  or  what  purported  to  be  a  statement,  of  the  facts,  and 
had  made  or  expressed  an  opinion  as  to  the  guilt  or  innocence  of 
the  accused,  this  would  constitute  cause,  within  the  meaning  of 
the  Discipline.  A  mere  bias,  however,  unless  it  amounted  to  a) 
legal  disability,  is  not  sufficient. 

The  objection  to  a  member  of  the  conference,  or  of  a  commit- 
tee, on  the  account  of  legal  disability,  should  be  regularly  inquired 
into  and  insisted  upon  before  the  commencement  of  the  trial  or 
investigation  I    for  if  either  party  should    neglect  or    refuse   to 


106  ECCLESIASTICAL  LAW. 


examine  the  committee  of  the  conference  at  the  proper  time 
he  woukl  not  be  permitted  to  do  so  afterwards ;  for  it  is  a  right 
that  may  be  waived,  and  the  party  will  be  held  to  have  waived 
it,  unless  he  makes  the  objection  in  apt  time ;  for  a  party  should 
never  be  permitted  to  take  advantage  of  his  own  laches,  or  to 
insist  upon  right  founded  upon  his  own  remissness ;  neither  will  a 
party  be  allowed  to  experiment  with  the  court,  or  with  a  Church 
tribunal,  by  waiving  the  objection,  if  it  is  in  his  favor,  or  by 
insisting  upon  it  if  the  finding  is  against  him. 

After  the  committee  is  impaneled,  or  the  conference  is  con- 
vened, it  is  the  privilege  of  the  prosecution  to  state  the  case  to 
the  committee  or  conference,  together  with  such  facts  and  cir- 
cumstances as  the  prosecution  expects  to  prove,  avoiding  as  far 
as  possible  the  statement  of  any  fact  which  would  be  immaterial, 
irrelevant,  or  not  admissible  in  evidence.  After  the  prosecu- 
tion lias  concluded  its  statement  of  the  case,  the  defendant,  or 
accused,  has  the  right  to  make  his  statement,  and  bring  forward 
his  theory  of  the  transaction  about  to  be  inquired  into.  This 
should  always  be  done  with  prudence  and  cai'c  ;  for  it  often  hap- 
pens that  the  statements  of  the  defendant,  or  the  defendant's 
counsel,  when  taken  in  connection  with  the  facts  and  circum- 
stances proved  on  the  trial,  afford  strong  evidence  of  guilt ;  this 
statement  of  the  defendant  may  be  made  before  any  evidence  is 
introduced  on  the  part  of  the  plaintiff  for  prosecution,  or  after 
the  evidence  on  the  part  of  the  prosecution  is  closed.  We  have 
said  that  the  prosecution  is  entitled  to  make  the  opening  state- 
ment, and  this  is  generally  true  ;  but  there  may  be  cases  in  which 
the  accused,  or  the  defendant,  has  assumed  the  burthen  of  the 
issue,  and  where  that  is  the  case,  as  where  the  defendant  admits 
the  facts  as  charged,  but  seeks  to  justify  them,  he  is  entitled 
to  begin  ;  and  the  party  having  the  opening,  or  having  assumed 
the  burthen  of  proof  is  entitled  not  only  to  begin,  but  to  con- 
clude both  the  evidence  and  the  argument. 

In  our  civil  courts,  and  especially  where  they  are  Courts  of 
Record,  causes,  whether  civil,  criminal,  or  equitable,  are  usually 
managed  and  conducted  by  regular  licensed  attorneys,  or  coun- 
selors at  law,  or  solicitors  in  chancery.  This  privilege  conferred 
upon  the  legal  profession  does  not  operate  to  exclude  a  party 
from  the  management  of  his  own  cause;  for  that  right  is  guar- 


PROCEEDINGS  PRELIMINARY  TO  A  TRIAL.  107 


anteed  to  him  bj  the  Constitution  of  every  State  in  the  Union, 
and  also  by  the  Federal  Constitution.  The  right  to  employ  the 
assistance  of  others,  however,  is  restricted  to  those  who  are 
legally  qualified.  By  an  examination  of  the  Discipline,  it  will  be 
seen  that  this  same  principle  is  recognized.  In  an  annual  confer- 
ence, in  a  judicial  conference,  and  in  the  General  Conference,  the 
party  engaged  to  act  for  another  must  be  a  member  of  such  con- 
ference, or  of  an  annual  conference.  In  other  judicial  investi- 
gations, involving  mere  membership,  the  party  authorized  to 
represent  another  must  at  least  be  a  member  of  the  Church. 


Part  Third. 
EVIDENCE 


CHAPTER  I. 


Under  this  head,  which  is  by  far  the  most  important  part  of 
a  Church  investigation  or  trial,  we  propose  to  consider  those 
general  rules  that  experience  and  the  wisdom  of  ages  have  dem- 
onstrated as  important  guides  to  the  attainment  of  truth.  Every 
science  has  its  rules  of  investigation,  the  ultimate  object  being 
the  attainment  of  truth,  whether  it  be  the  solution  of  a  mathe- 
matical truth,  that  is  capable  of  demonstration,  or  a  moral 
truth,  which  is  incapable  of  demonstration,  except  to  satisfy  the 
conscience  of  the  tribunal  before  whom  the  investigation  takes 
place.  The  rules  of  evidence  are  the  means  employed  for  the 
attainment  of  this  object. 

Evidence  adduced  before  a  committee  of  the  Church  or  be- 
fore a  jury  upon  controverted  questions  of  fact  is  of  two  kinds; 
parol  evidence,  consisting  of  viva  voce  examination  of  witnesses, 
and  written  evidence.  We  shall  first  consider  the  subject  of 
proof  by  witnesses,  and  the  principal  rules  relative  to  evidence, 
applicable  to  this  class  of  investigation;  in  the  second  place,  we 
shall  treat  of  the  subject  of  written  evidence;  and  in  the  third 
and  last  place,  consider  certain  principles  of  the  law  of  evidence 
of  a  practical  nature,  such  as  the  means  of  procuring  the  attend- 
ance of  witnesses  before  a  Church  tribunal,  and  the  methods  of 
examining  witnesses,  and  other  evidence. 


108 


INCOMPETENCY  OF  WITNESSES.  109 


CHAPTER  II. 

INCOMPETENCY   OF   WITNESSES. 

The  parties  are  not  permitted,  according  to  their  own  notions, 
to  introduce  every  description  of  evidence,  which  may  be  sup- 
posed to  throw  light  upon  the  matter  in  dispute.  The  evidence 
must  be  both  competent  and  relevant ;  otherwise,  if  brought  for- 
ward, it  would  oftener  lead  to  error  than  to  truth  ;  and  the  atten- 
tion of  the  committee  might  be  diverted  by  the  introduction  of 
irrelevant  or  immaterial  evidence ;  and  the  investigation  often 
extended  to  a  most  inconvenient  length,  thereby  bringing  just 
reproach  upon  the  tribunal  before  which  the  investigation  is  held. 
In  analogy  to  proceedings  before  our  civil  tribunals  it  is  the 
province  of  the  preacher  in  charge,  or  other  presiding  officer,  to 
decide  all  questions  arising  on  the  admissibility  of  evidence ;  also 
to  decide  any  preliminary  question  of  fact,  however  intricate  or 
complicated  the  question  may  be,  the  solution  of  which  may 
be  necessary  to  enable  him  to  determine  the  legal  question  of 
admissibility.  Whether  there  be  any  evidence  or  not,  is  a 
question  for  the  judge  or  presiding  officer;  whether  the  evi- 
dence is  sufficient  to  support  the  charge  is  a  question  for  the 
jury  or  for  the  committee.^ 

Chief-Justice  Story  defined,  with  his  usual  great  ability,  the 
true  boundary  between  the  court  and  the  jury ;  he  says:  ^'  I  hold  it 
to  be  the  most  sacred  constitutional  right  of  every  party  accused 
of  a  crime,  that  the  jury  should  respond  as  to  the  facts,  and  the 
court  as  to  the  law.  If  the  jury  were  at  liberty  to  settle  the  law 
for  themselves,  the  effect  would  be  most  uncertain  from  the  dif- 
ferent views  which  different  juries  might  take  of  it;  but,  in  case 
of  error,  there  would  be  no  remedy  or  redress  by  the  party  in- 
jured, for  the  court  would  not  have  any  right  to  review  the  law, 
as  it  had  been  settled  by  the  jury.  Indeed,  it  would  be  almost 
impracticable  to  ascertain  what  the  law,  as  settled  by  the  jury, 
actually  was.     On  the  contrary,  if  the  court  should  err,  in  laying 

*  Carpenter  V.  Hai/ward,  Doug.  374;  Best's  Principles  of  Evidence,  §§76-86; 
in  the  case  of  United  States  v.  Baltiste,  2  Sumn.  243. 


110  ECCLESIASTICAL  LAW, 


down  the  law  to  the  jury,  there  is  an  adequate  remedy  for  the 
injured  party."  ^ 

The  law  excludes  some  descriptions  of  evidence,  and  wholly 
rejects  the  testimony  of  certain  persons,  who  are  termed  incom- 
petent witnesses.^  In  considering  this  question  it  is  necessary  to 
refer  to  the  difference  which  necessarily  exists  between  judicial 
investigations,  and  the  ordinary  affairs  of  life.  In  the  one  case 
there  is  but  a  brief  space  of  time  allotted  for  the  investigation. 
Again,  the  temptation  to  deceive,  the  facilities  for  deception,  and 
the  consequences  of  deciding  erroneously,  require  the  utmost  de- 
gree of  caution  and  circumspection. 

The  rules  adopted  for  the  admission  or  exclusion  of  witnesses, 
do  not  profess  to  be  infallible  tests  of  credibility.  Their  pro- 
priety must  be  judged  of  by  their  general  practical  results.  A 
witness  is  deemed  incapable  to  give  evidence  at  all,  (first)  when 
he  labors  under  a  defect  of  understanding  ;  (second)  a  defect  of 
religious  principle, —  if  he  does  not  acknowledge  the  sanction  of 
religious  obligation  upon  his  conscience;  (third)  where  his  char- 
acter is  infamous  in  consequence  of  a  conviction  of  some  infamous 
crime  ;  and  (  fourth  )  it  was  formerly  held  that  where  the  witness 
was  interested  in  the  matter  he  was  incompetent,^  but  this  ground 
of  incompetency  is  now,  in  our  civil  tribunals,  restricted  to  a 
very  narrow  limit,  and  has  no  application  to  a  Church  investiga- 

Levi  V.  Mi/lne,  4  Bing.  195;  CommoniveaWi  v.  Porter^  10  Metcalfe,  263. 
The  Court  were  asked  to  charge  that  the  jury  were  judges  of  the  law  and 
facts.  The  Court  refused  to  instruct  in  this  form,  but  said  the  jury  had  the 
power,  and,  if  they  chose  to  exert  it,  the  right,  to  determine  all  questions  of  law 
and  fact,  so  far  as  to  acquit;  and,  if  they  did  so,  there  was  no  power  to  correct 
any  error  committed  by  them  in  such  acquittal,  and  that  they  were  not  exclu- 
sive judges  of  both  law  and  fact,  as  a  general  rule,  in  criminal  prosecutions;  for, 
if  they  found  the  accused  guilty,  and  it  turned  out  that  their  finding  was  illegal, 
they  had  no  power,  but  the  Court  had,  to  set  aside  their  verdict  and  grant  a  new 
trial.     Montrjowery  v.  8tatc  of  Ohio,  11  Ohio  Reports,  427. 

2  The  law  forbids  such  testimony  because  it  may  have  an  influence  upon 
honest  jurors,  who  arc  unconscious  of  the  impressions  which  they  retain,  not- 
withstanding the  effort  of  the  Court  to  obliterate  them.  Penjield  against  Carpen- 
ter, 18  John.  349. 

*  Competency  is  presumed  till  the  contrary  is  shown,  but  the  interest  once 
being  established,  it  should  be  clearly  removed ;  and  where  the  witness  leaves 
the  question  doubtful  on  the  facts  stated,  and  the  judge  at  nisi  prius  rejects  the 
witness,  the  Court  in  bench  may  refuse  to  grant  a  new  trial.  Seymour  v.  Beech, 
11  Conn.  272-181. 


INCOMPETENCY  OF  WITNESSES.  Ill 

tion  01-  trial ;  and  upon  a  Church  trial,  every  witness  who  is  not 
laboring  under  any  or  either  of  the  first  three  preceding  grounds 
of  disability  is  competent. 

Incompetency  from  defect  of  understanding  arises  where  a 
person  has  not  the  use  of  his  reason  because  of  a  mental  infirm- 
ity ;  such  person  is  utterly  incapable  of  giving  evidence,  and 
is,  therefore,  excluded.  This  ground  of  exclusion,  which  arises 
from  a  defective  understanding,  is  where  there  is  a  natural 
deficiency  of  intellect  ;  as  in  the  case  of  an  idiot,  or  where  the 
mind  has  become  diseased,  as  in  the  case  of  an  insane  person ; 
or  where  the  mind  is  immature,  as  in  children.  Such  persons  are 
wholly  incapable  of  comprehending  the  nature  of  the  obligation 
imposed  upon  them,  and  are  incompetent  Avitnesses.  It  was  for- 
merly supposed,  but  now  held  otherwise,  that  persons  born  deaf 
and  dumb  were  incompetent ;  but  now  the  same  tests  apply  to 
them  that  are  applied  to  any  other  persons  ofi'ered  as  witnesses. 
If  they  have  sufficient  undei'standing  to  comprehend  the  nature 
of  an  oath,  they  may  be  examined  as  witnesses  through  the  me- 
dium of  an  interpreter ;  or  if  they  are  able  to  write  their  testi- 
mony, it  should  be  taken  in  that  mode,  as  the  more  certain.  A 
person  who  has  become  a  lunatic  is  incompetent  while  his  intellect 
is  deranged ;  although  he  may  be  examined  as  a  witness  during 
his  lucid  intervals,  if  it  be  satisfactorily  shown  that  he  has 
sufficient  reason  to  comprehend  the  nature  of  the  obligation,  and 
feels  the  restraints  which  tlie  obligation  imposes.  Where  it  is 
once  shown,  or  established,  that  the  insanity  or  lunacy  of  the 
witness  existed,  the  presumption  of  its  continuance  arises  until 
rebutted  by  proof,  ^  the  burthen  of  which  devolves  upon  the  party 
alleging  a  restoration,  or  a  lucid  interval.^ 

^  In  all  cases  where  the  act  of  a  party  is  sought  to  be  avoided  on  the  ground 
of  his  mental  imbecility,  the  proof  of  the  fact  lies  upon  him  who  alleges  it,  and 
until  the  contrary  appears,  sanity  is  to  be  presumed.  This  rule  of  law  is  recog- 
nized by  all  elementary  writers  on  the  subject;  and  in  all  adjudged  cases  which 
I  have  met  with,  in  both  law  and  equity,  the  court,  in  their  reasoning  and  opin- 
ions, seem  to  take  it  for  granted. 

^  This  rule  undoubtedly  has  its  qualifications,  one  of  which  is,  that  after 
a  general  derangement  has  been  shown,  it  is  then  incumbent  on  the  other  side 
to  show  that  the  party  who  did  the  act  was  sane  at  tlie  very  time  when  it  was 
performed.  But  independently  of  authority  the  law  ouglit  to  be  so.  Almost 
all  mankind  are  possessed  of  at  least  a  sut^ieieut  ponion  of  reason  to  be  able  to 

c 


112 


ECCLESIASTICAL  LAW. 


Peake  lays  down  a  genei'al  proposition,  "  That  all  persons 
who  are  examined  as  witnesses  must  be  fully  possessed  of  their 
understanding,  that  is,  such  an  understanding  as  enables  them  to 
retain  in  memory  the  events  of  which  they  have  been  wit- 
nesses, and  gives  them  a  knowledge  of  right  and  wrong;  that, 
therefore,  idiots  and  lunatics,  mider  the  influence  of  their  malady, 
not  possessing  this  share  of  understanding,  are  excluded."  This 
principle  necessarily  excludes  from  testifying  all  who  are  besot- 
ted with  intoxication  at  tiie  time  they  are  so  offered  as  witnesses ; 
for  intoxication  causes  a  temporary  dei-angeraent  of  the  mind ; 
and  it  is  impossible  for  such  men  to  have  such  a  memory  of 
events,  of  which  they  may  have  had  a  knowledge,  as  to  be  able 
to  present  them  fairly  and  faithfully  to  those  who  are  to  decide 
upon  the  contested  facts.  ^  Thus,  a  present  and  existing  mtoxi- 
cation,  to  a  considerable  degree,  so  utterly  disqualifies  the  person 
aflfected  as  to  warrant  the  court  or  presiding  officer  to  come  to  the 
conclusion  that  the  witness  is  unable  to  state  the  facts  and  events 
in  such  a  way  as  to  make  his  statement  worthy. of  reliance.  It 
would,  we  think,  be  profaning  the  sanctity  of  the  oath  to  tender 
it  to  a  man  who  has  no  present  sense  of  the  obligation  it  imposes. 
Indeed,  it  would  be  a  scandal  and  disgrace  to  the  administration 
of  justice,  to  allow,  for  a  moment,  the  rights  of  individuals  to  be 
prejudiced  by  the  testimony  of  any  man  laboring  under  the  sin 
of  drunkenness. 

Every  court  or  officer  exercising  judicial  powers  must  neces- 
sarily have  the  authority  to  decide  upon  its  own  view  of  the 
situation  of  the  witness  offered,  whether  he  be  intoxicated  to 
such  a  degree  as  that  he  ought  not  to  be  heard.     Nor  can  this 

mana(:;e  the  ordinary  concerns  of  life.  To  say,  therefore,  that  sanity  is  not  to 
be  presumed  until  the  contrary  is  proved,  is  to  say  that  insanity  or  fatuity  is  the 
natural  state  of  the  human  mind.     Jackson  v.  Van  Diisen,  5  John.  15i). 

'  I  am  not  prepared  to  believe  that  the  mind  can  so  soon  resume  a  healthy 
virfor  after  so  much,  and  so  lonn;,  derangement  from  such  besotted  habits. 
When  the  mind  is  thus  broken  down  by  a  long  course  of  dissipation,  the  feverish 
moments  of  a  half  sober,  or  even  a  sober,  interval  can  not  be  called,  therefore, 
a  lucid  interval,  for  the  purpose  of  establishing  the  acts  of  the  party.  To  lay 
down  such  a  rule  would  be  but  to  invite  the  covetous  and  crafty  to  seize  the  vic- 
tim in  an  interval  of  his  greatest  physical  agony  and  prostration,  as  the  one  in 
which  the  mind  alone  is  clear,  free,  and  judicious.  All  observation  contradicts 
the  inference  of  so  instantaneous  a  mental  recovery.  Menkias  v.  Lighiner, 
18  Ills.  2«5. 


I 


INCOMPETENCY  OF  WITNESSES.  113 

lead  to  any  improper  consequences.^  A  witness  is  not,  however, 
incompetent  merely  because  he  has  been  judicially  declared  an 
habitual  di'unkard,  and  his  estate  committed  to  a  trustee,  pro- 
vided he  is  sober  at  the  time  he  is  offered  as  a  witness^ 

There  is  no  precise  age  fixed  at  which  children  are  admitted 
to  give  evidence.  The  competency  of  children  is  not  regulated 
by  their  age,  but  by  the  degree  of  understanding  which  they 
appear  to  possess.  In  Braziere  case,  on  an  indictment  for  as- 
saulting an  infant  five  years  old  with  the  intent  to  outrage  her,  all 
the  judges  agreed  that  chiklren  of  any  age  might  be  examined 
upon  oath  if  capable  of  distinguishing  between  good  and  evil, 
and  possessing  sufficient  knowledge  of  the  consequences  of  a 
false  oath.  This  is  now  the  established  ride,  as  well  in  crim- 
inal as  ciWl  cases,  and  it  applies  equally  to  capital  offenses 
as  to  offenses  of  an  inferior  nature.  '■  According  to  this  rule," 
says  Mr.  Phillips,^  "the  admissibility  of  children  depends  not 
merely  upon  their  possessing  a  competent  degree  of  understand- 
ing, but  also,  in  part,  upon  their  having  received  such  a  degree 
of  religious  instruction  as  not  to  be  ignorant  of  the  nature  of  an 
oath,  and  the  consequences  of  falsehood." 

In  illustration  of  this  principle  the  court  held,*  where  a  child 
eight  years  old,  being  offered  as  a  witness,  and  it  appearing^ 
that  to  within  six  weeks  of  the  trial,  she  had  never  heard  of  a 
God,  or  a  future  state  of  rewards  and  punishments,  that  she  had 
never  prayed,  or  knew  the  nature  of  an  obligation,  but  that 
since,  a  clergyman  had  twice  visited  and  instructed  her  on  the 
nature  of  an  oath,  that  she  was  not  competent ;  and  Patterson, 
J.,  before  whom  the  case  was  tried,  rejected  her  testimony,  say- 
ing:  "I  must  be  satisfied  that  she  felt  the  binding  obligation  of 
an  oath,  from  the  general  course  of  lier  religious  education  ; 
that  the  effect  of  an  oath  upon  the  conscience  of  a  child  should 
arise  from  religious  feelings  of  a  permanent  nature,  and  not 
merely  from  instructions,  confined  to  the  nature  of  the  oath, 
recently  communicated  for  the  purpose  of  the  trial." 

The  preliminary  inquiries,  usually  made  for  the  ascertainment 
of  the  competency  of  a  child,  are  not  of  the  most  satisfactory 

1  Hartford  v.  Palmer,  16  John.  142. 

*  Gebhardt  v.  Shiiidle,  15  Serg.  and  Rawle,  235. 

2 1  Phillips's  Ev.  5.       *  Eex  v.  Williams,  7  Carr  and  Payne,  320. 


114  ECCLESIASTICAL  LAW. 


nature ;  and  are  often  of  such  a  description,  that  merely  by  a 
slight  practicing  of  the  memory  a  child  might  be  made  to  appear 
competent  as  a  witness.  The  inquiry  is  not  necessarily  restricted 
to  the  ascertainment  of  the  fact  whether  the  child  has  a  concep- 
tion of  divine  punishment,  as  being  a  consequence  of  falsehood, 
but  it  may  be  of  a  more  general  character,  showing  the  nature 
and  extent  of  the  child's  knowledge ;  and  as  to  whether  such 
knowledge  arises  from  merely  practicing  the  memory,  or  from 
feelings  of  a  permanent  natui-e,  founded  upon  religious  instruc- 
tion and  moral  accountability  to  God.  It  follows  as  the  neces- 
sary result  of  Avhat  we  have  previously  said,  that  where  a  child 
is  unfit  to  be  sworn,  any  account  of  the  transaction  it  may  have 
given  to  other  persons  ought  not  to  be  received  in  evidence. 

Incompetenc}^  from  defect  of  religious  principles,  the  second 
ground  of  exclusion,  received  the  sanction  of  some  of  our  earliest 
law  writers  ;  and  it  appears  to  be  of  almost  universal  applica- 
tion. No  exemption  from  this  obligation  can  be  claimed  in  this 
country,  at  least  in  consequence  of  rank  or  station.  Where  there 
is  a  want  of  a  sense  of  moral  accountability  to  God,  the  law  pre- 
sumes that  the  witness  would  be  as  likely  to  testify  falsely  as  to 
depose  to  the  truth. ^  While  in  Churcii  investigations  no  form 
of  obligation,  or  ceremony,  is  administered  to  the  witness,  yet 
the  same  tests  of  competency  may  be  employed ;  hence  the  wit- 
ness may  be  asked,  before  making  his  statement  in  chief,  whether 

^  By  the  law  of  England,  wliich  has  been  adopted  in  this  State,  it  is  fully  and 
clearly  settled,  that  infidels  who  do  not  believe  in  a  God,  or,  if  they  do,  do  not 
think  that  he  will  either  reward  or  punish  them  in  the  world  to  come,  can  not 
be  witnesses  in  any  case,  or  under  any  circumstances;  because  an  oath  can 
not  possilily  be  any  tie  or  oblifration  upon  them.  Mohammedans  may  be  sworn 
on  the  Koran;  Jews  on  the  Pentateuch;  and  Gentoos  and  others  according  to 
the  ceiemonies  of  their  religion,  whatever  may  be  the  form.     18  John.  103. 

Mr.  Justice  Story  held,  that  a  person  who  did  not  believe  in  the  existence 
of  a  God,  or  a  future  state  of  existence,  was  not  a  competent  witness.  Such, 
undoubtedly,  is  the  law  of  England.  "Our  law,"  says  an  English  writer  on 
evidence,  of  great  authority,  "  like  that  of  most  other  civilized  countries,  require3 
a  witness  to  believe  that  there  is  a  God,  and  a  future  state  of  rewards  and  pun- 
ishments." "It  may  now  be  considered  as  an  established  rule,"  says  the  same 
writer,  "that  infidels  of  any  other  country,  who  believe  in  a  God,  the  avenger  of 
falsehood,  ought  to  be  received  here  as  witnesses ;  but  infidels,  who  believe  not 
that  there  is  a  God,  or  a  future  .state  of  rewards  and  puni.shments,  can  not  be 
admitted  in  any  case.     15  Mass.  184. 


INCOMPETENCY  OF  WITNESSES.  115 

he  believes  in  God,  and  recognizes  liis  divine  riglit  to  impose 
punishment  as  a  consequence  of  the  binding  efficacy  of  the  obli- 
gation, -which  is  implied  in  being  a  witness ;  for  if  he  does  not, 
his  testimony  should  be  rejected.  The  subject  of  rejection, 
founded  on  a  want  of  religious  belief,  came  before  the  Supreme 
Court  of  the  State  of  New  York.  It  was  proved  that  the  person 
offered  as  a  witness  had,  within  three  months  before  the  trial, 
often  deliberately  and  publicly  declared  his  disbelief  in  the  exist- 
ence of  a  God,  and  of  a  future  state  of  rewards  and  punishments; 
and  the  Court  held,  ''That  all  who  did  not  believe  in  a  God,  or,  if 
they  did,  did  not  think  that  he  would  either  reward  or  punish  them 
in  the  world  to  come,  are  incompetent  witnesses  in  any  case  or 
under  any  circumstances ;  because  an  oath  would  not  be  any  tie 
upon  them.''^  In  a  subsequent  case  the  true  test  of  a  witness's 
competency,  on  the  ground  of  his  religious  principle,  is  said  to 
be  ''  whether  he  believes  in  the  existence  of  a  God  who  will  pun- 
ish him  if  he  swears  falsely."^ 

^  Jackson  ex.  dem.  v.  Gridley,  18  JoLn.  103. 

2  Walworth,  Circuit  Judge,  delivered  the  opinion  of  the  Court:  "It  is  a 
legal  presumption,  that  every  person  born  and  educated  in  a  Christian  country, 
and  who  has  arrived  at  years  of  discretion,  is  a  competent  witness  until  the  con- 
trary is  shown.  It  is,  therefore,  incumbent  upon  the  party  objecting  to  such  a 
witness  to  show,  by  clear  and  satisfactory  proof,  that  he  is  incompetent.  With- 
out such  proof,  it  will  not  be  presumed  that  such  a  witness  disbelieves  in  the 
existence  of  a  God,  or  in  that  attribute  of  divine  justice  which  will,  sooner  or 
later,  insure  the  punishment  of  the  guilty.  I  apprehend  the  true  t-est  of  the 
competency  of  a  witness  to  be  this :  Has  the  obligation  of  an  oath  any  bind- 
ing tie  upon  his  conscience?  Or,  in  other  words,  does  the  witness  believe  in  the 
existence  of  a  God  who  will  punish  his  perjury?  If  he  swears  falsely,  does  he 
believe  he  will  be  punished  by  an  overruling  Providence,  either  in  this  world,  or 
the  world  to  come?  If  he  does  not  believe  in  the  existence  of  a  God,  or  if  he 
believes  in  no  punishment,  except  by  human  laws,  no  obligation  or  tie  can  have 
any  binding  force  upon  his  conscience.  But  if  he  believes  he  will  be  punished 
by  his  God,  even  in  this  world,  if  he  swears  falsely,  there  is  a  binding  tie  upon  the 
conscience  of  the  witness;  and  he  must  be  sworn;  and  the  strength  or  weak- 
ness of  that  tie  is  only  proper  to  be  taken  into  consideration  in  deciding  upon 
the  degree  of  credit  to  be  given  to  his  testimony.  It  is  a  question  as  to  his 
credibility,  and  not  as  to  his  competency. 

"  We  are  aware,  that  in  the  case  of  Gridley,  the  late  Chief-Justice  Spencer 
lays  down  the  law  as  clearly  settled,  that  the  witness  must  believe  in  a  state  of 
rewards  and  punishments  in  the  world  to  come,  or  he  is  incompeteiii.  If  the 
question  had  been  directly  before  the  Court  in  that  case,  I  should  consider  thi.s 
Court  bound  by  the   opinion  of  the  Chief-Justice,   as  being  the  decision  of  a 


116  ECCLESIASTICAL  LAW, 

Within  this  rule  are  comprehended  those  Avho  believe  that 
there  shall  be  a  future  punishment,  but  do  not  believe  that  it  is 

higher  tribunal  on  this  precise  question.  But  in  tliat  case,  the  witness  had  de- 
clared his  total  disbelief  in  the  existence  of  a  Supreme  Being.  He  believed  in 
no  punishment  by  an  overruling  Providence  in  this  life;  and  he  believed  that 
at  death  he  would  perish  with  the  brutes.  There  could  be  no  tie  upon  the  con- 
science of  such  a  witness;  for  he  had  no  conscience.  He  considered  himself, 
and  was  in  fact,  no  better  than  a  beast.  That  part  of  the  opinion  of  Chief- 
Justice  Spencer  which  relates  to  punishments  in  another  world,  was  therefore  an 
obiter  dictum^  and  wholly  unnecessary  to  the  decision  of  the  cause  then  before 
the  Court. 

"We  should,  notwithstanding,  pay  great  deference  to  this  opinion,  as  com- 
ing from  the  pen  of  such  an  able  jurist,  was  I  not  certain  he  had  fallen  into 
the  same  error  with  many  of  the  English  writers,  in  relation  to  this  question. 
The  foundation  of  all  the  error  on  this  subject,  both  in  this  country  and  Eng- 
land, was  the  misreporting  of  the  opinion  of  Chief-Justice  Willes  as  delivered  in 
the  case  of  Omichitnd  v.  Barker,  in  February,  1745.  This  case  was  first  re- 
ported by  Atkyns,  in  1765.  In  that  report  Chief-Justice  Willes  is  made  to  say, 
'I  am  clearly  of  the  opinion  that  if  they  do  not  believe  in  a  God,  or  future  re- 
wards and  punishments,  they  ought  not  to  be  admitted  as  witnesses.'  And  this 
expression,  as  reported  by  Atkyns,  is  referred  to  by  most  of  the  English  writers  in 
relation  to  this  question.  But  Willes  did  not  in  reality  say  any  such  thing;  but, 
on  the  contrary,  he  expressly  declared  that,  in  his  opinion,  an  infidel,  who  believes 
a  God,  and  that  he  will  reward  and  punish  in  this  world,  but  disbelieves  a  future 
state,  may  be  a  witness.  His  opinion  in  Omichnnd  v.  Barker  was  drawn  out  at 
length  by  himself,  and  was  left  among  his  other  manuscript  decisions;  but  it 
was  not  published  till  1799,  more  than  fifty  years  after  it  was  delivered,  when 
Willcs's  Reports  were  collected  from  the  manuscripts  of  tliat  learned  judge,  by 
Mr.  Charles  Durnford. 

"In  the  opinion  written  by  himself,  and  correctly  reported  by  Durnford  iu 
Willes's  Reports,  he  says,  '1  am  clearly  of  the  opinion  that  such  infidels  (if  any 
such  there  be),  who  either  do  not  believe  a  God,  or,  if  they  do,  do  not  think  that 
he  will  either  reward  or  punish  them  in  this  world  or  in  the  next,  can  not  be  wit- 
nesses in  any  case  or  under  any  circumstances;  for  this  plain  reason,  because 
an  oath  can  not  possibly  be  any  tie  or  obligation  upon  them.'  It  is  somewhat 
remarkable  that  the  rule  of  exclusion,  as  laid  down  by  Chief-Justice  Spencer, 
in  Gridlcys's  case,  is  in  the  very  language  of  Willes,  except  the  leaving  out  of 
the  words  'in  this  world  or  in  the  next,'  and  substituting  therefor  'in  the  world 
to  come.'  To  show  that  if  there  is  any  tie  upon  the  conscience  of  the  witness, 
ills  infidelity  goes  to  his  credit,  and  not  to  his  competency,  in  another  part  of  his 
opinion,  Chief-Justice  Willes  says:  'Suppose  an  infidel,  who  believes  a  God, 
and  that  he  will  reward  or  punish  him  in  this  world,  but  does  not  believe  a 
future  state,  be  examined  on  oath,  as  I  think  he  ma;/,  and  on  the  other  side  to 
contradict  him,  a  Christian  is  examined,  who  believes  a  future  state,  and  that  he 
shall  be  punished  in  the  next  ivnrld  as  well  as  in  this,  if  he  docs  not  swear  to 
the  truth,  I  think  the  same  credit  ought  not  to  be  given  to  the  infidel  as  to  tho 
Christian,  because  he  is  j)lainly  not  under  so  strong  an  obligation.' 


INCOMPETENCY  OF  WITNESSES.  117 

to  be  eternal,^  In  an  anonymous  case,  however,  which  was 
decided  before  "Williams,  Circuit  Judge, ^  it  was  lield  that  all 
persons  who  believed  in  the  existence  of  a  God,  and  in  future 
punishment  by  him  in  this  world  or  in  the  world  to  come, 
are  competent  witnesses.  This  latter  doctrine  is  held  by  the 
Supreme  Court  of  Massachusetts.^  In  Connecticut  and  Ten- 
nessee a  person  who  does  not  believe  in  the  obligation  of  an 
oath  or  any  accountability  after  death,  is  inadmissible  as  a  wit- 
ness.^ It  was  held  in  Ohio  that  a  person  who  does  not  believe 
in  future  rewards  and  punishments,  but  that  our  deeds  will  be 
punished  in  this  world,  and  that  we  shall  exist  immortal  in  a 
future  state,  exempt  from  punishment  for  deeds  done  in  the  body, 
is  competent  as  a  witness.  Subsequently,  in  the  same  State,  it 
was  doubted  whether  a  defect  in  religious  belief  should  go  to  the 
competency  or  to  the  credibility  of  the  Avitness.  ^  The  incom- 
petency of  a  witness  from  defect  of  religious  belief  may  be 
established  by  proof  of  his  declarations  out  of  Court,  and  when 
so  established,  the  witness  will  not  be  permitted  to  deny  or  ex- 
plain such  declarations,  or  his  opinions,  or  even  to  state  his  re- 

"Sueh  we  understand  to  be  the  common  law  of  England  as  it  existed  at 
the  time  of  our  revolution ;  and  which,  by  the  Constitution,  is  made  the  law  of 
this  State.  And  this  is  not  a  hasty  opinion  formed  during  the  trial  of  tliis 
cause,  but  from  having  examined  the  subject  heretofore.  In  this  opinion  I  be- 
lieve I  am  supported  by  most,  if  not  all,  of  the  circuit  judges. 

"  There  is  nothing,  in  the  case  before  the  Court,  to  show  that  the  creed  of 
this  witness  is  materially  variant  from  that  of  a  considerable  class  of  the  Uni- 
versalists,  who  believe  in  the  existence  of  a  God.  in  the  authenticity  of  the  Scrip- 
tures, and  in  the  divinity  of  the  Savior,  but  deny  that  there  is  any  punishment 
for  the  wicked  after  this  life.  Until  the  contrary  is  shown,  we  are  bound  to 
presume  he  believes  in  the  existence  of  a  God,  who  will  punish  the  wicked  in 
this  life.  In  the  view  I  have  taken  of  the  subject,  this  would  render  him  a  com- 
petent witness;  and,  as  I  have  before  observed,  if  his  creed  is  any  worse  than 
^this,  it  is  incumbent  on  the  defendant  to  show  that  fact.  And  however  much  I 
may  regret  the  existence  of  a  creed  which  may  jeopardize  the  future  happiness 
of  its  possessor,  the  rules  of  law  and  rights  of  conscience  must  not  be  infringed. 
The  witness  must,  therefore,  be  sworn,  and  the  jury  are  the  proper  judges  of  his 
credibility."     Note  in  the  case  of  Butts  v.  Sivartwood,  2  Cowen,  433. 

^  Butts  V.  Swartwood,  2  Cowen,  431;   People  v.  Matteson,  2  Cowen,  432. 

2  2  Cowen,  572. 

^  Hunscom  v.  Hunscom,  15  Mass.  184. 

^Curtis  V.   Strong,  4  Day,  51;   State  v.   Dougherty,  2  Tenn.  80;  See  also 
Swift's  Ev.  48. 

*  Easterday  v.  Eilborn,  1  Wright,  345. 


118  ECCLESIASTICAL  LAW. 


cantation  of  them ;  but  lie  may  be  restored  to  competency,  on 
giving  satisfactory  proof  of  a  change  of  opinion  before  the  trial, 
a  sufficient  length  of  time  to  repel  any  presumption  arising 
from  sinister  motives.  In  a  case  tried  before  Justice  Story,  the 
defendant  made  out  a  case  of  defective  religious  belief  against 
two  witnesses,  when  the  plaintiff's  counsel  suggested  that  they 
might  be  personally  examined,  the  Court  said  that  ''  The  de- 
fendant's counsel  was  not  bound  to  rely  on  the  testimony  of 
these  persons  for  proof  of  incompetency."^ 


CHAPTER  III. 

IXCOMPETEXCY    FROM    CONVICTION    OF    CRIME. 

The  conviction,  by  a  court  of  competent  jurisdiction,  of  a 
person  of  an  infamous  crime,  followed  by  judgment,  disqunlities 
such  person  for  giving  evidence;  and  such  persons  are  rejected 
for  this  cause  ;  and  are  said  to  be  incompetent  on  account  of  the 
infamy  of  their  character.  There  is  a  manifest  distinction  be- 
tween infamy  of  character  in  the  ordinary  sense  of  the  expres- 
sion, and  that  of  legal  infamy  which  results  from  the  judgment 
of  a  court  of  justice,  A  man  may  be  stigmatized  by  public 
fame  or  rumor  only;  and  in  such  a  case  it  only  affects  the  credit 
of  his  testimony,  but  does  not  go  to  the  formal  exclusion  of  such 
a  person  as  a  witness.  It  frequently  happens,  that  a  witness  is 
suffered  to  give  evidence,  because  not  absolutely  disqualified  by 
the  rules  of  law,  though  he  may  be  far  lower  in  point  of  real 
character  than  another,  who  is  excluded  as  incompetent.  The 
former  may  be  said  to  be  infama  juris, — that  is,  infamous  in  the 
eye  of  the  law, — the  latter  infama  facta;  the  former  destroys 
his  competency,  the  latter  goes  to  his  credibility.  The  legal 
ground  of  exclusion,  upon  Avhicli  (his  rule  has  been  justified,  is 
tliat  the  testimony  of  persons  convicted  of  infamous  crimes  is 
destitute  of  all  presumption  of  credit,  and  would,  therefore,  be 
more  likely  to  luislead,  than  to  assist,  in  the  investigation  of 
ti'uth.  Some  regard  it  as  part  of  the  jiunishment  the  law  im- 
poses upon  the  offender;   the  loss  is  not  ordinarily  upon  the  con- 

'  Wakefield  v.  ii'os.f,  ;1  Mason,  18. 


IXCO.MPETENCY  FROM  CONVICTION  OF  CRLME.  119 

vict,  but  the  party  wlio  requires  his  evidence.  Tlie  power  of 
giving-  evidence  ought  not  to  be  regarded  as  a  personal  privilege 
of  the  witness,  but  for  the  benefit  of  the  public,  and  of  suitors 
who  may  happen  to  be  interested.  Such  weighty  considerations 
have  induced  the  courts  to  relax,  to  some  extent,  the  rigor  of  the 
ancient  common  law  rule ;  and  now  in  some  of  the  States  such 
witnesses  are  made  competent  by  statute,  leaving  their  convic- 
tion to  go  to  their  credibility.  And  this,  Ave  think,  is  the  better 
rule.  It  is  not,  however,  every  Conviction  that  renders  a  party 
incompetent  from  giving  evidence,  but  it  has  been  generally  laid 
down  by  writers  on  the  law  of  evidence  that  every  species  of 
what  may  be  termed  crimen  falsi  renders  the  party  convicted  an 
incompetent  witness. 

It  is  clear,  that  by  the  common  law  a  conviction  for  forgery, 
as  well  as  of  all  offenses  tending  to  prevent  the  public  adminis- 
tration of  justice  by  falsehood  or  fraud,  such  as  perjury,  suborna- 
tion of  perjury,  bribing  a  witness  to  absent  himself  in  order  that 
he  may  not  give  evidence,  conspiring  to  accuse  another  person 
of  a  capital  offense,  disqualifies  a  Avitness.  Judgment  of  outlawry 
or  felony  had  the  same  effect.  The  legal  infamy,  which  disquali- 
fies a  Avitness,  arises  not  from  the  nature  of  the  punishment,  but 
from  the  natiu'e  of  the  offense.  The  fact  of  the  party  having 
committed  the  offense  can  not  be  proved  viva  voce,  nor  Avill  CA^en 
an  admission  by  the  Avitness  himself  be  receiA^ed,  except  as  tend- 
ing to  affect  his  credibility.  It  is  necessary  to  prove,  in  order  to 
exclude  the  witness,  the  judgment  as  Avell  as  the  conA^iction ;  and 
this  may  be  done  in  the  usual  Avay,  by  the  record,  or  by  an 
exemplified  copy  of  the  record,  duly  authenticated.  The  pro- 
ceedings, Avhen  produced,  must  appear  to  be  regular,  and  to  have 
been  rendered  in  a  court  of  competent  jurisdiction ;  thus,  a  paper 
purporting  to  be  an  indictment  and  conAnction  is  imperfect  as 
a  record,  Avithout  a  caption  or  convening  order;  since  the  caption 
shows  by  what  authority  the  indictment  was  found.  The  indict- 
ment must  state  all  the  circumstances  essential  to  constitute  the 
offense.  Where  there  is  enough  in  the  record,  however,  to  shoAV 
an  offense,  and  that  the  court  had  jurisdiction,  it  can  not  be 
attacked  collaterally  for  mere  errors  or  irregularities  not  amount- 
ing to  a  want  of  jurisdiction,  either  over  the  offense  or  the  party. 
But  Avhere  there  has  been  a  judgment  of  conviction,  the  opposite 


120  ECCLESIASTICAL  LAW. 

party  may  show  tliat  such  judgment  has  been  reversed,  vacated, 
or  set  aside.  Where  there  has  been  a  reversal  of  the  judgment, 
the  witness's  incompetency  is  restored.  The  witness  may  also  be 
rendered  competent  by  a  pardon  from  the  executive  of  the  State 
or  general  government,  where  the  disability  is  created  by  the 
judgment  of  the  court,  and  not  by  the  express  words  of  a  stat- 
ute ;  for  in  sucli  a  case  a  pardon  will  not  restore  competency ;  for 
the  prerogatives  of  the  executive  are  controlled  by  tlie  act  of  the 
legislature.  Thus,  if  a  man  be  found  guilty  on  an  indictment  for 
perjury  at  common  law,  a  pardon  from  the  crown  will  render 
him  a  competent  witness,  but  if  he  be  convicted  of  perjury,  or 
subornation  of  perjury,  under  the  statute  of  5  Eliz.  C.  9,  such 
pardon  will  not  render  him  competent.  In  a  pardon,  if  the  par- 
don is  conditional,  the  performance  of  the  condition  ought  to  be 
shown,  for  on  that  depends  its  efficacy.  Pardons  were  not  un- 
frequently  granted  in  England  for  the  purpose  of  procuring  the 
evidence  of  a  witness  to  some  offense,  or  supposed  offense.  In 
this  way  the  Crown  had  the  power  of  supplying  or  withholding 
evidence  ;  and  convicts,  in  the  hope  of  receiving  a  pardon,  were 
often  tempted,  and  often  did,  exaggerate  their  evidence  •,  and 
were,  in  fact,  entitled  to  less  credibility  than  they  would  have 
been  before  pardon.  Human  pardon  may  condone  the  offense, 
but  it  does  not  restore  or  change  the  character  of  the  offender. 


CHAPTER  IV. 

ACCOMPLICES. 

Nearly  allied  to  the  question  of  incompetency,  is  that  of 
want  of  credibility  ;  and  this  want  of  credibility  may  arise  from 
several  sources  ;  but  we  propose  in  this  connection  to  consider 
only  one,  and  that  is  the  Avant  of  credibility  arising  from  being 
an  accomplice.  By  this  we  mean  all  persons  who  have  been 
connected  in  the  commission  of  a  crime,  whether  they  are  con- 
sidered in  strict  legal  propriety  as  principals,  or  accessories, 
before  or  after  the  fact.  IMie  evidence  of  accomplices  has,  at  all 
times,  been  admitted,  cither  from  a  principle  of  public  policy,  or 
from  judicial  necessity,  or  both.  They  arc,  no  doubt,  requisite 
as  witnesses  in  particular  cases;   but  it  has  been  Avell  observed, 


ACCOMPLICES.  121 


that  in  a  regular  system  of  administrative  justice,  they  are  liable 
to  serious  objections.  ^'  The  law,"  says  one  of  the  ablest  and 
most  useful  writers  upon  modern  criminal  jurisprudence,  "  con- 
fesses its  own  weakness  by  calling  in  the  assistance  of  those  by 
whom  it  has  been  broken ;  it  offers  a  premium  to  treachery,  and 
destroys  the  last  virtue  which  clings  to  the  degraded  transgressor. 
On  the  other  hand,  it  tends  to  prevent  any  extensive  agreement 
among  atrocious  criminals ;  it  makes  them  perpetually  suspicious 
of  each  other,  and  prevents  the  hopelessness  of  mercy  from  ren- 
dering them  desperate."^  The  general  rule  is,  that  a  person  who 
confesses  that  he  is  guilty  of  a  crime  is  a  competent  witness 
against  his  partner  in  guilt.  And  on  the  trial  of  an  accessory 
for  a  misdemeanor,  in  receiving  stolen  goods,  under  the  statute 
the  principal  is  a  competent  witness.  So,  also,  in  the  case  of  a 
felony,  the  principal  is  a  competent  witness  against  the  accessory. 
The  practice  of  admitting  accomplices  to  give  evidence  against 
their  associates  in  crime  Avas  adopted  from  analogy  to  the  old 
common  law  of  approvement,  Avhich  was,  when  a  prisoner  was 
arraigned  on  a  capital  charge,  he  confessed  the  fact  before  he 
pleaded,  and  then  accused  his  coadjutor  of  the  same  offense. 
He  must  have  been  indicted,  and  in  custody,  and  have  desired  to 
accuse  his  accomplices,  before  he  could  become  an  approver. 
He  must,  likewise,  have  discovered  upon  oath,  not  only  the  par- 
ticular offense  for  which  he  Avas  indicted,  but  all  treasons  and  fel- 
onies that  he  knew  of;  and  after  all  this,  it  Avas  in  the  discretion  of 
the  court  to  assign  him  a  coroner,  and  admit  him  as  an  approver 
or  not.  If,  upon  the  trial  of  the  appeal,  it  appeared  that  he  Avas 
a  principal,  and  tempted  the  others,  the  court  might  still  reject 
him,  even  after  he  AA'as  admitted.  It  must  have  appeared,  in 
addition  to  the  other  facts,  that  Avhat  he  discovered  Avas  true,  and 
that  he  had  discoA^ered  the  Avhole  truth  ;  and  if,  on  the  trial,  the 
party  accused  AA'as  acquitted,  judgment  of  death  was  passed 
against  the  approvei',  upon  his  own  confession  of  the  indictment.  ^ 


^  Chittj's  Cr.  Law,  82-630  ;   Cowp.  334. 

"  Cowp.  335;   Leach,  118.     The  People  v.   Whipple,  9  Cowen,  TOS. 

In  the  case  of  Mijres  v.  The  People,  2G  Ills.,  175,  it  is  said  by  the  Court 

"that  Carpenter  was  an  approver,  and  for  that  reason  was  incompetent  to  give 

evidence,  and  that  the  Court  erred  in  admitting  him  as  a  witness.     The  statute 

has  expressly  provided,  '  That  an  approver  shall  not  give  evidence,'  and  if  this 


122  ECCLESIASTICAL  LAW. 

By  the  common-law,  approvement  is  said  to  be  a  species  of  con- 
fession, and  incident  to  the  arraignment  of  a  prisoner  indicted 
for  treason,  or  felony,  who  confesses  the  fact  before  pleaded, 
and  appeals,  or  accuses  others,  his  accomplices  in  the  same 
crime,  in  order  to  obtain  his  own  pardon.  In  this  case  he  is 
called  an  approver,  or  prover,  or  probater ;  and  the  party 
"appealed  or  accused  is  called  the  appellee.  Such  approvement 
can  only  be  in  capital  offenses,  and  is,  as  it  were,  equivalent 
to  an  indictment,  since  the  appellee  is  equally  called  upon  to 
ansAver  it.^  It  was  out  of  this  doctrine  of  approvement  that  the 
modern  practice  of  admitting  accomplices  to  give  evidence, 
under  an  implied  promise  of  pardon,  grew  up.  And  Mr.  Phillips, 
in  his  work  on  evidence,"  says  :  "■  Great  injustice  would  result  if 
it  Avere  the  practice  of  jurors  to  convict  upon  the  unsupported 
evidence  of  accomplices,  whose  testimony,  though  admitted  from 
necessity,  ought  always  to  be  received  with  great  jealousy  and 
caution,  for,  upon  their  own  confession,  they  stand  contaminated 
with  guilt.  They  admit  a  participation  in  the  very  crime  they 
endeavor  to  fix  upon  the  prisoner.  They  are  sometimes  entitled 
to  a  reward,  and  always  expect  to  earn  a  pardon." 

The  doctrine,  therefore,  of  a  legal  conviction  upon  the  un- 
supported evidence  of  an  accomplice  has  been  greatly  modified 
in  practice,  and  it  has  long  been  considered,  as  a  general  rule 
of  i^ractice,  that  the  testimony  of  a  single  accomplice  ought  to 
receive  confirmation,^  and  that  unless  it  be  corroborated  in  some 


objection  is  well  taken,  the  judgment  of  the  court  below  must  be  reversed.  Who 
then  is  an  approver?  He  is  one  who  confesses  himself  guilty  of  felony,  and 
accuses  others  of  the  same  crime,  to  save  himself  from  punishment.  Tlie  fact 
that  the  witness  confessed  that  he  had  been  guilty  of  other  felonies,  although  it 
went  to  his  credibility,  did  not  constitute  liim  an  approver." 

^  4  Blackstoue's  Com.  2G7.     Grai/,  ct  al,  v.  The  People.  2G  Ills.,  347. 

2  1  Phillips's  Ev.  31. 

^  It  was  urged  at  the  trial,  and  again  here,  that  the  corroboration  of  an  ac- 
complice, to  be  effectual,  must  be  in  respect  to  some  fact,  the  truth  or  falsehood 
of  which  goes  to  prove  or  disf)rove  directly  the  ofl'ense  charged  upon  the  pris- 
oner; and  that  the  corroboration  of  an  accomplice  by  one  or  more  accom- 
plices is  not  the  confirmation  the  law  requires.  The  court  advised  the  jury 
that  the  witnesses,  who  were  accomplices  of  the  prisoner,  were  not  to  be  be- 
lieved by  them,  unles.s  confirmed  by  other  credible  witnesses,  in  respect  to  the 
facts  connecting  the  prisoner  with  the  possession  of  the  forged  bills,  or  with  the 
manufacture  of  them.     Mr.  Justice  Alderson,  in  surauiing  up  the  case  of  Rex  v. 


ACCOMPLICES.  123 


material  part  by  unimpeacliable  evidence,  tlie  presiding  judge 
ought  to  advise  the  jury  to  acquit  the  prisoner.^  In  a  case  tried 
before  Mr.  Justice  Bullcr,  tlie  twelve  judges  were  unanimously  of 
the  opinion  that  an  accomplice  alone  is  a  competent  witness,  and 
that,  if  the  jury,  weighing  the  probability  of  his  testimony,  think 
him  worthy  of  belief,  a  conviction  supported  by  such  testimony 
alone  is  perfectly  legal. ^  In  Jones's  Case^  Lord  Ellenborough 
observed  ''that  judges  in  their  discretion  will  advise  a  jury  not  to 
believe  an  accomplice,  unless  he  is  conhrmed,  or  only  in  so  far  as 
he  is  contirmed  ;  but  if  lie  is  believed,  his  testimony  is  unquestion- 
ably sufficient  to  establish  the  fact  deposed  to."  But  if  the  judge 
exercises  this  discretionary  power  to  advise,  he  ought  to  remem- 
ber to  tell  the  jury  at  the  same  time  that  his  testimony  is  not  to 

Wilkes  and  Edwards  (7  Carr  and  Payne,  272)  observed  "that  the  confirmation 
he  always  advised  juries  to  require,  was  a  confirmation  of  the  accomplice  in 
some  fact  which  went  to  fix  the  guilt  on  the  particular  person  charged."  See 
also  6  Carr  and  Payne,  388,  595.  Every  part  of  the  testimony  need  not  be 
confirmed;  and  the  question  usually  is,  whether  the  jury  will  beiieve  the  witness 
in  such  parts  of  his  narrative  as  the  confirmation  does  not  extend  to.  2  Russ.  GOO, 
and  the  cases  there  cited.  It  appears  to  us  that  the  instructions  given  on  this 
point  were  as  favorable  to  the  prisoner  as  the  most  liberal  cases  on  the  subject 
recommend;  certainly  more  so  than  can  be  exacted  of  the  Court  by  the  settled 
rules  of  evidence.  2  Camp.  138,  and  the  cases  before  referred  to.  Within  these 
rules  the  jury  might  have  been  advised  that  if  they  believed  the  accomplices, 
they  were  bound  to  convict;  though  I  concede,  iu  the  exercise  of  a  sound  dis- 
cretion the  Court  should  usually  recommend  the  propriety  of  confirmatory  evi- 
dence, and  a  discreet  jury  will  generally  require  it.  Here  the  facts  which  the 
Court  advised  should  be  confirmed  by  other  credible  witnesses  before  a  convic- 
tion could  be  justified  tended  directly  to  fix  upon  the  prisoner  the  offense.  He 
is  in  possession  of  the  forged  bills  of  the  bank,  or  the  actual  forging  of  them 
(the  fact  to  be  confirmed  as  cliarged)  if  not  of  the  essence  went  to  the  point  of 
the  offense,  and,  if  believed,  pressed  very  strongly  against  him,  and  laid  a  foun- 
dation for  giving  credit  to  the  narrative  of  his  associates.  The  People  v.  Davis, 
2lWend.  313. 

^  Judge  Dillon  instructed  the  jury  in  the  M'Kee  whisky  revenue  case,  "that 
the  testimony  of  conspirators  is  always  to  be  received  with  extreme  caution: 
and  weighed  and  scrutinized  with  great  care  by  the  jury,  who  should  not  convict 
upon  it  unsupported,  unless  it  produce  in  their  minds  the  fullest  and  most  posi- 
tive conviction  of  its  truth ;  it  is  just  and  proper  in  such  cases  for  the  jury  to 
seek  for  corroborating  facts  in  material  respects.  It  is  not  absolutely  necessary 
to  establish  a  conspiracy,  or  a  person's  connection  therewith;  it  is  competent  to  do 
so,  not  only  by  direct  testimony,  but  by  facts  and  circumstances  which  produce 
a  clear  and  positive  conviction. 

-Atwood's  Case,  1  Leach,  -IGL  "2  Camp.  132. 


124-  ECCLESIASTICAL  LAW. 

be  confirmed  in  every  particular,  but  onlj  as  to  some  one  fact  or 
facts,  the  truth  or  falsitj  of  which  goes  to  prove  or  disprove  the 
offense  charged  against  the  prisoner.^  Wliether  the  evidence 
produced  to  confirm  the  accomplice  is  satisfactory  or  not,  is  a 
question  which  the  jury  is  to  determine."  Lord  Hale  remarked 
in  Loungies  case^  that,  "in  the  earlier  State  trials,  the  protection 
and  countenance  afforded  by  judges  to  accomplices,  spies,  and 
informers,  were  carried  to  a  shameful  length."  The  language 
of  Lord  Holt,  in  the  trials  of  the  assassination  plot,  may  prob- 
ably be  thought,  at  the  present  day,  too  favorable  towards 
accomplices.  ■*  The  exordium  of  Lord  Howard  toward  this  class 
of  eviclencCj  in  the  Algernon  Sydney  case,  is  a  curious  specimen 
of  the  hypocrisy  of  an  accomplice.  This  probably  led  to  that 
caution  which  induced  many  judges  to  advise  an  acquittal  where 
the  testimony  of  an  accomplice  is  unsupported  by  corroborating 
evidence  or  circumstance.  The  rule,  however,  that  judges 
should  advise  an  acquittal  where  the  testimony  of  an  accom- 
plice is  imsupported  trenches  upon  another  well-established  rule, 
that  it  is  the  peculiar  province  of  the  jury  or  the  committee  to 
determine  the  degree  of  credit  to  be  attached  to  any  competent 
evidence  submitted  for  their  consideration.  It  has  accordingly 
been  laid  down  in  many  well-considered  cases  as  a  settled  rule, 
that  a  conviction  obtained  on  the  unsupported  testimony  of  an 
accomplice   is   strictly  legal. '^ 


CHAPTER  V. 

HUSBAND   AND    WIFE. 

We  have  previouslj^  said  that  there  are  three  grounds  of 
exchision  of  a  witness  for  incouipetency ;  to  some  extent  this 
relation  may  be  regarded  as  constituting  the  fourth.  The  exclu- 
sion of  the  husband  or  wife,  when  offered  as  a  witness  for  or 
against  each  other,  is  not  universal. 

By   the   common  law,    the    objection   Avas    placed  upon   two 

^  Gr(i]i  ct  at.  V.  Tlic  Pco}>/r^  Addis.  Case,  G  Carr  and  Payne,  388. 

■'  1  riiillips's,  Ev.  3!),  !)  Ed.  3  1  Hale,  C.  P.  304. 

M2  Howard  St.  Trials,  M54. 

=^7  CiuT  and  Payne,  15'2;   Noland  v.  The  Stale,  19  Ohio,  131. 


HUSBAND  AND  WIFE.  125 

grounds:  First,  identity  of  interest;  the  husband  and  wife  being 
regarded  as  one  person  in  law.  The  second  ground  of  inconipe- 
tencj  was  based  upon  public  policy ;  and  is  now  the  only  ground 
of  exclusion,  the  other  having  been  swept  away,  almost  entirely, 
by  modern  legislation.^ 

The  law,  having  regard  to  the  happiness  of  the  marriage 
state,  and  to  prevent  invasion  of  that  confidence  that  husband 
and  wife  are  required  to  repose  in  each  other,  has  wisely  pro- 
vided, that  communications  made  by  one  to  the  other  should  be 

^  The  Code  provides  that  a  party  to  an  action  may  be  examined  as  a  witness 
in  his  own  behalf,  or  in  behalf  of  any  other  party,  in  the  same  manner,  and  sub- 
ject to  the  same  rules  of  examination,  as  any  other  witness,  except  that  neither 
husband  nor  wife  shall  be  required  to  disclose  any  communication  made  by  one 
to  the  other.  The  letter  of  the  statutes  certainly  extends  to  married  persons 
when  they  are  parties  not  having  conflicting  interests,  and  the  exception  is  a 
plain  indication  of  the  legislative  intention  to  change  or  modify  the  common 
law  rule  as  to  the  admissibility  of  husband  and  wife  as  witnesses.  The  reason 
of  the  latter  rule,  for  not  admitting  husband  and  wife  as  witnesses  for  each 
other,  was  because  of  an  identity  of  interest;  nor  against  each  other  because 
contrary  to  the  legal  policy  of  marriage. 

"  Husband  and  wife,"  says  Blackstone,  "  are  uot  allowed  to  be  evidence  for 
or  against  each  other,  partly  because  it  is  impossible  that  their  testimony  should 
be  indifi'erent,  but  principally  because  of  the  union  of  persons,  and,  therefore, 
if  they  were  admitted  to  be  witnesses  for  each  other,  they  would  contradict  our 
maxim  of  law:  No  one  shall  be  a  witness  in  his  own  cause;  and  if  against  each 
other,  they  would  contradict  another  maxim  :  No  one  is  obliged  to  convict  him- 
self."    (  1  Bl.  Com.  443  ). 

"If  they  "  (husband  and  wife  ),  says  Baron  Gllbei-t,  in  his  work  on  evidence 
(  page  552  ),  "swear  for  each  other,  they  are  not  believed,  because  their  interests 
are  absolutely  the  same,  and,  therefore,  they  can  give  no  more  credit  when  they 
attest  for  each  other  than  when  a  man  attests  for  himself;  and  it  would  be  very 
hard  if  a  wife  should  be  allowed  as  evidence  against  her  husband,  when  she  can 
not  attest  for  him.  Such  a  law  would  occasion  implacable  quarrels  and  divisions, 
and  destroy  the  very  legal  policy  of  marriage."  But  of  late  years,  in  this  State, 
material  and  radical  changes  have  been  made  in  the  law  of  husband  and  wife, 
and  in  the  law  of  evidence,  and  the  competency  and  admissibility  of  witnesses, 
undermining,  in  a  great  degree,  the  uses  of,  and  practically  abrogating  the  com- 
mon-law rule.  The  wife  has  been  admitted  to  separate  rights  of  property,  and 
to  separate  rights  of  action,  even  as  against  the  husband  himself  Interest,  in 
the  event  of  the  action,  is  no  longer  a  ground  for  excluding  a  witness;  and 
the  parties  themselves  may  be  witnesses  in  their  own  behalf,  or  witnesses  in 
their  own  cause.  Parties,  with  certain  exceptions,  are  placed  upon  th«  same 
footing  and  subject  to  the  same  rules  of  examination  as  any  other  witnesses. 
There  is  no  longer  any  reason  for  e.xcluding  husband  and  wife  as  witnesses 
lOr  or  against  each  other,  on  the  ground  of  interest,  for  as  parties  to  an  action, 


126  ECCLESIASTICAL  LAW. 

kept  inviolate ;  and  tliat  nothing  confided  by  the  one  should  be 
extracted  from  the  bosom  of  the  other.  The  law  does  not  deem 
communications  made  between  husband  and  wife  privileged  only 
so  long  as  the  relation  exists,  but  it  extends  its  application  after 
the  parties  are  separated,  either  by  death  or  divorce  ;  though 
the  one  may  testify  to  facts  which  come  to  his  or  her  knowl- 
edge, by  means  equally  accessible  to  any  person  not  standing 
in  that  relation.-^ 

they  may  be  witnesses  for  themselves,  and  it  was  tliis  ground  of  union  of 
interest  and  privilege,  between  husband  and  wife,  that  mainly  gave  rise  to  the 
common-law  rule  excluding  them  from  testifying  for  or  against  each  other. 
Be  this,  however,  as  it  may,  the  tendency  and  effect  of  legislation  has  been 
to  abrogate  the  common-law  distinctions,  growing  out  of  the  marital  i-elation 
in  respect  to  the  competency  of  witnesses ;  whether  husband  and  wife  are 
parties  to  or  Interested  in  an  action,  they  maybe  examined  in  the  same  manner 
and  subject  to  the  same' rules  of  examination  as  any  other  witness,  except  that 
they  shall  not  be  required  to  disclose  any  confidential  communication  made  to 
each  other  during  marriage.  If  husband. and  wife  are  parties  to  an  action,  the 
statute  ill  terms  makes  them  competent  witnesses  in  their  own  behalf,  or  In 
behalf  of  any  other  party,  and  subjects  them  to  the  same  rules  of  examination 
as  other  witnesses,  except  protecting  either  from  a  disclosure  of  communications 
made  by  one  to  the  other.  The  exception  is  strongly  indicative  of  the  legislative 
intention  to  render  husband  and  wife,  when  parties,  competent  to  testify  as  to  all 
matters,  other  than  communication  made  by  the  husband  to  the  wife,  or  the  wife 
to  the  husband.      Wehrkamp  v.  Willeli,  1  Keyes,  253. 

^  Stein  v.  Boicman,  13  Curtis's  Decisions,  131,  132.  In  that  case  it  was  said 
by  the  Court,  "That  the  law  does  not  seem  to  be  entirely  settled  how  far,  in  a 
collateral  case,  a  wife  may  be  examined  on  matters  In  which  her  husband  may 
be  eventually  Interested.  Nor  whether,  in  such  a  case,  she  may  not  be  asked 
questions  as  to  facts  that  may,  in  some  measure,  tend  to  criminate  her  husband, 
but  which  afford  no  foundation  for  a  prosecution.  The  decisions  which  have 
been  made  on  these  points  seem  to  have  been  Influenced  by  the  circumstances 
of  each  case,  and  ihcy  are  somewhat  contradictory.  It  is,  however,  admitted  in 
all  the  cases,  that  the  wife  Is  not  competent,  except  in  cases  of  violence  upon 
her  person,  directly  to  criminate  her  Imsband,  or  to  disclose  that  which  she  has 
learned  froitf  him  In  their  confidential  intercourse.  Some  color  is  found  in  some 
of  the  elementary  works  for  the  suggestion  that  this  rule,  being  founded  on  the 
confidential  relations  of  the  parties,  will  protect  either  from  the  necessity  of  a 
disclosure;  but  will  not  prohibit  either  from  voluntarily  making  any  disclosure 
of  matters  received  In  confidence,  and  the  wife  and  the  husband  have  been 
Tevlewod,  In  this  respect,  as  having  a  right  to  ])rotection  from  a  disclosure,  on  the 
the  same  principle  us  any  attorney  is  protected  from  a  disclosure  of  the  facts 
communicated  to  him  by  his  client.  The  rule  which  protect.s  an  attorney.  In  such 
case,  is  founded  on  public  policy,  and  is  essential  to  the  administration  of  justice. 
But  this  is  the  privilege  of  the  client,  and  not  of  the  attorney.     The  rule  which 


HUSBAND  AND  WIFE..  127 

For  the  purpose  of  promoting*  a  perfect  imiou  of  interest,  and 
securing  nnitual  confidence  between  husband  and  wife,  the  courts 
have  generally  refused  to  admit  the  wife  as  a  witness  against  the 
husband,  even  after  the  marriage  contract  is  at  an  end.  When 
the  wife  is  called  to  speak  of  any  matter  which  happened  during 
the  continuance  of  the  marriage,  and  which  might  affect  the  hus- 
band in  his  pecuniary  interest,  or  in  his  chai-acter,  her  evidence 
Avill  be  rejected.^ 

protects  tlie  domestic  relations  from  exposure  rests  upon  considerations  con- 
nected with  the  peace  of  the  family.  And  it  is  conceived  that  this  principle 
does  not  merely  afford  protection  to  the  husband  and  wife,  which  they  iire  at 
liberty  to  invoke,  or  not,  at  their  discretion,  when  the  question  is  propounded, 
but  it  renders  them  incompetent  to  disclose  facts  in  evidence,  in  violation  of  the 
rule.  And  it  is  well  that  the  principle  does  not  rest  on  the  discretion  of  the 
Darties.  If  it  did,  in  most  instances  it  would  afford  no  substantial  protection  to 
persons  uninstructed  in  their  rights,  and  thrown  off  their  guard,  and  embar- 
rassed by  searching  interrogatories. 

"In  the  present  case,  the  witness  was  called  to  discredit  her  husband;  to 
prove,  in  fiict,  that  he  had  committed  perjury,  and  the  establishment  of  the 
fact  depended  on  his  own  confessions  —  confessions  which,  if  ever  made,  were 
made  under  all  the  confidence  that  subsists  between  husband  and  wife.  It  is 
true,  the  husband  was  dead,  but  this  does  not  weaken  the  principle.  Indeed,  it 
would  seem  rather  to  increase  than  lessen  the  force  of  the  rule.  Can  the 
wife,  under  such  circumstances,  either  voluntarily  be  permitted,  or  by  force  of 
authority  be  compelled,  to  state  facts  in  evidence  which  render  infamous  the 
character  of  her  husband  ?  We  think  most  clearly  that  she  can  not  be.  Public 
policy  and  established  principles  forbid  it. 

"  This  rule  is  founded  upon  the  deepest  and  soundest  principles  of  our  nature — 
principles  which  have  grown  out  of  those  domestic  relations  that  constitute  the 
basis  of  civil  society,  and  which  are  assential  to  the  enjoyment  of  that  confidence 
which  should  subsist  between  those  who  are  connected  by  the  nearest  and  dearest 
relations  of  life.  To  break  down  or  impair  the  great  principles  which  protect 
the  sanctities  of  husband  and  wife  would  be  to  destroy  the  best  solace  of  human 
existence.  We  think  that  the  Court  erred  in  overruling  the  objections  to  this 
witness."'  Aveson  v.  Kinnaird,  6  East,  192.  Coffin  v.  Jones  13  Pick.  444. 
2  Starkie's  Ev.,  706.     Peake's  Ev.,  5  ed.,  171. 

^  Lord  Alvanley  said,  "  To  prove  any  fact  arising  after  the  divorce,  this  lady 
is  a  competent  witness;  but  not  to  prove  a  contract,  or  any  thing  else,  which 
happened  during  coverture.  She  was  at  that  time  bound  to  secrecy.  What  she 
did  might  be  in  consequence  of  the  trust  and  confidence  reposed  in  her  by  her 
husband;  and  miserable  indeed  would  the  condition  of  a  husband  be,  if,  when  a 
woman  is  divorced  from  him,  perhaps  for  her  own  misconduct,  all  the  occur- 
rences of  his  life  intrusted  to  her,  while  the  most  perfect  and  unbounded  confi- 
dence existed  between  them,  should  be  divulged  in  a  court  of  justice."  He 
added  :  "It  never  shall  be  endured  that  the  confidence  which  the  law  has  created 


128  ECCLESIASTICAL  LAW. 

A  wife  should  not  be  called,  in  any  case,  to  give  evidence 
tending  to  criminate  her  husband.  Mr.  Justice  Gross  ^  observed  : 
''In  all  the  books  which  treat  of  evidence  there  are  certain  tech- 
nical rules  laid  down,  which  are  highly  beneficial  to  the  public, 
and  ought  not  to  be  departed  from.  Some  of  these  relate  to 
husband  and  wife,  and  we  find  the  general  rule  as  to  them  to  be 
founded,  not  on  the  ground  of  interest,  but  of  policy,  by  which  it 
is  established  that  a  wife  shall  not  be  called  to  give  evidence  in 
any  degree  to  criminate  her  husband ; "  and  Lord  Holt  says 
'^  that  she  shall  not  be  called  indirectly  to  criminate  him,  and 
the  rule  seems  to  have  governed  all  the  decisions  from  that  time 
to  the  present."'  An  apparent  exception  Avas  at  one  time  allowed 
on  grounds  of  State  policy,  the  courts  holding  that  the  wife 
Avas  a  competent  Avitness  against  the  husband  in  case  of  treason  ;^ 
but  it  has  since  been  settled  that  the  Avife  is  not  bound  to  dis- 
cover the  treason  of  her  husband.^  In  one  case  it  Avas  held  that 
a  Avife,  Avho  had  been  diA^orced  a  vinculo  matrimonii ,  Avas  a  com- 
petent Avitness  to  prove  a  forgery  committed  by  the  husband 
during  coverture  ;  but  that  case  Avas  not  in  harmony  Avith  the 
adjudged  cases,  and  Avas  subsequently  expressly  overruled. 

In  bastardy  cases,  Avhere  the  mother  is  a  married  Avoman,  it 
has  been  uniformly  held  that  the  Avife  AA'as  not  a  competent  Avit 
ness  to  prove  the  non-access  of  the  husband ;  but  from  the  neces 
sit}^  of  the  case,  she  has  been  constantly  admitted  to  proA^e  the 
criminal  intercourse  by  Avhich  the  child  Avas  begotten.'* 

while  the  parties  remained  in  the  most  intimate  of  all  relations,  shall  be  broken, 
whenever,  by  the  misconduct  of  one  party,  that  relation  has  been  dissolved." 
RatcUffe  v.  Wales.  1  Hill,  G  l 

^  The  King  v.  Chivkier,  2  Term,  208. 

2  Bull,  N.  P.,  289.       »  1  Brownl.  4  7. 

^  From  these  authorities  I  think  this  conclusion  may  be  drawn,  that  circum- 
stances which  show  a  natural  impossibility  that  the  husband  could  be  the  father 
of  the  cliild  of  wliich  the  wife  is  delivered,  whether  arising  from  his  being 
under  age  of  puberty,  or  from  his  laboring  under  disability  occasioned  by  natural 
infirmity,  or  from  the  length  of  time  elapsed  since  his  death,  are  grounds  on  which 
the  illegitimacy  of  the  child  may  be  founded.  And,  therefore,  if  we  may  resort  to 
all  such  impediments,  arising  from  the  natural  causes  adverted  to,  we  may  adopt 
other  causes  equally  potent  and  conducive  to  show  the  absolute  physical  impossi- 
bility of  the  husband's  being  the  father.  I  will  not  say,  the  improbability  of  his 
being  such,  for  upon  the  ground  of  improbability,  however  strong,  I  should  not 
venture  to  proceed.   No  person,  however,  can  raise  a  question,  whether  a  fortnight's 


HUSBAND  AND  WIFE.  120 

Tlie  rule,  as  we  liave  seen,  wliich  excludes  parties  from  be- 
ing witnesses  for  themselves  applies  to  the  case  of  husband  and 
wife,  neither  of  them  being  admissible  as  a  witness  in  a  case 
civil  or  criminal,  and  where  by  law  the  other  would  be  incompe- 
tent. An  exception  or  qualification  of  this  rule  is  admitted  in  a 
case  where  the  husband's  account  books  Avere  kept  by  the  wife, 
and  were  offered  in  evidence  in  an  action  brought  by  the  hus- 
band for  goods  soldj  the  wife  was  held  a  competent  witness  to 
testify  that  she  made  the  entries  by  liis  direction. 

The  principle  of  exclusion  renders  the  wife  an  incompetent 
witness  against  a  co-defendant,  tried  with  her  husband,  if  the 
testimony  concerns  her  husband,  though  it  be  not  directly  against 
him;  nor  is  she  a  competent  witness  for  a  co-defendant,  if  her 
testimony  would  tend  directly  to  the  acquittal  of  her  husband. 
Where,  however,  the  grounds  of  defense  are  several  and  dis- 
tinct, and  in  no  manner  dependent  on  each  other,  her  testimony 
may  be  admitted  for  the  other.  Where  an  offense  Avas  jointly 
committed  by  two  or  more,  and  they  Avere  jointly  indicted,  but 
tried  separately,  it  Avas  held  that  the  wife  Avas  a  competent  Avit- 
ness  for  the  other.  ^      Where  the  Avife  of  one  prisoner  Avas  called 

access  of  the  husband  before  the  birth  of  a  full-grown  child  can  constitute,  in 
the  course  of  nature,  the  actual  relation  of  father  and  child.  But  it  is  .said  that 
if  we  break  through  the  rule  Insisted  upon,  that  the  non-access  of  the  husband 
must  continue  the  whole  period  between  the  possible  conception  and  delivery, 
we  shall  be  driven  to  nice  questions.  That,  however,  is  not  so;  for  the  gen- 
eral presumption  will  prevail,  except  a  case  of  plain  natural  impossibility  is 
shown;  and  to  establish,  as  an  exception,  a  case  of  such  extreme  impossibility, 
as  the  present,  can  not  do  any  harm  or  produce  any  uncertainty  in  the  law  on 
this  subject.  Without  weakening,  therefore,  any  legal  presumption  applicable 
to  the  subject,  we  may,  without  hesitation,  say  that  a  child  born  under  these  cir- 
cumstances is  a  bastard.  With  respect  to  the  case  where  the  parents  have 
married  so  recently  before  the  birth  of  the  child  that  it  could  not  have  been 
begotten  in  wedlock,  it  stands  upon  its  own  peculiar  grounds.  The  marriage  of 
the  parties  is  the  criterion  adopted  by  law,  in  cases  of  ante-nuptial  generation, 
for  ascertaining  the  actual  parentage  of  the  child.  For  this  purpose  it  will  not 
examine  when  gestation  began,  looking  only  to  the  recognition  of  it  by  the  hu.s- 
band  in  the  subsequent  act  of  marriage.      The  King  v.  Luffe,  8  East,  207. 

The  King  v.  The  Inhabitants  of  Kea,  11  East,  132.  {Canton  v.  Beniley, 
11  Mass.,  441.)  It  may  well  be  doubted,  however,  whether  a  husband  can  be  a 
competent  witness  to  prove  a  fact  which  amounts  to  adultery  on  the  part  of  the 
wife,  and  it  would  certainly  be  against  good  manners  and  common  decency  that 
such  evidences  should  be  admitted. 

1  Fnllen  v.  The  People,  1  Doug.  HIch.  R.  48. 


130  ECCLESIASTICAL  LAW. 

to  prove  an  alibi  in  favor  of  another  jointlj  indicted  and  tried, 
she  was  held  incompetent,  and  her  evidence  was  excUided  on  the 
ground  that  her  testimony  tended  to  weaken  that  of  the  wit- 
nesses against  her  husband,  by  showing  that  they  were  mistaken 
in  a  material  fact.^ 

It  makes  no  difference  in  the  principle  of  exclusion  at  Avhat 
time  the  reUxtion  of  husband  and  wife  commenced,  the  principle 
being  api)lieable  to  its  fullest  extent  whenever  either  of  them  is 
directly  concerned,  and  the  relation  of  husband  and  wife  forms 
an  exception  to  the  general  rule  that  neither  a  witness  nor  the 
opposite  party  can,  by  his  own  act,  deprive  the  other  party  of  a 
right  to  the  testimony  of  the  witness. 

Thus,  where  the  defendant  married  the  witness  after  she  was 
summoned  to  testify  she  was  held  incompetent.  The  rule  of  ex- 
clusion is  the  same  between  the  admissibility  of  the  husband  and 
that  of  the  M'ife,  where  the  other  is  a  party,  and  when  in  any 
case  they  are  admissible  against  each  other.  They  are,  also, 
for  a  like  reason  admissible  for  each  other."  The  fact  that  the 
relation  no  longer  exists  is  immaterial,  the  object  of  the  rule  be- 
ing to  secure  domestic  happiness  by  placing  the  confidential 
communications  between  husband  and  wife  under  the  protecting 
sanction  of  the  law, ^  and,  therefore,  whatever  has  come  to  the 
knowledge  of  cither    husband  or  wife,    by  means  of  the  confi- 

1  Rex  V.  Smith,  1  ]\ro(ld.  Cr.  Cases.  2S9. 

^  The  original  objects,  that  were  to  be  effected  by  allowing  the  wife  to  be  a 
witness  against  her  husband,  in  cases  of  personal  violence  npon  hei",  do  not  seem 
to  require  the  extension  of  the  exception,  so  far  as  to  allow  her  to  be  a  witness 
for  her  husband  on  the  trial  of  an  indictment  against  him  for  an  assault  upon 
her,  where  the  government  have  ollior  testimony  to  sustain  the  charge;  and,  as 
a  new  question,  we  should  liavo  sonic  doulits  as  to  the  correctness  of  the  doc- 
trine contended  for  by  the  defendant.  But  the  elementary  books  on  criminal 
law  all  seem  to  recognize  and  adopt  the  rule  that  in  all  cases  where  the  wife 
may  be  called  as  a  witness  against  her  husband,  she  may  also  be  used  as  a  wit- 
ness in  his  favor.  This  proposition  was  stated  in  the  case  of  Jiex  v.  Sergeant 
1  lly.  and  Mood.  3.")2,  as  one  tliat  had  been  held  in  the  case  of  Kinfj  v.  Pern/, 
not  elsewhere  reported.  Abl)ott,  C.  J.,  in  stating  that  case,  states  liis  concur- 
rence therein,  and  that  there  is  no  distinction  between  admitting  the  wife  to 
testify  for  or  against  her  hu.sband,  and  that  if  competent  in  the  case  for  one 
purpose  she  is  equally  so  for  the  other.  Commonwealth  v.  Stephen  Mtirphij, 
4  Allen,  'l!)l,  A\)2. 

*Tn  any  action  brought  by  a  wife  after  the  death  of  her  husband  against  a 
railroad  corporation  for  injuries  occasioned  to  her  by  their  locomotive  engine 


HUSBAND  AND  WIFE.  131 

(Icnco  of  tliG  marriage  relation,  can  not  afterwards  be  used  as 
testimony,  even  though  the  other  party  be  no  longer  living. 
This  princij)le  of  exclusion  is  so  fully  recognized,  that  in  a  case 
where  the  husband  was  offered  as  a  Avitness  against  the  wife, 
charged  with  conspiracy  in  procuring  him  to  marry  her,  he  was 
held  incompetent.-^  Lord  Alvanley  once  said,  "It  shall  never  be 
endured  that  the  confidence  which  the  law  has  created,  Avhile  the 
parties  remain  in  the  most  sacred  of  all  relations,  shall  be  broken 
whenever,  by  the  misconduct  of  one  of  the  parties,  the  relation 
has  been  dissolved." 

This  rule  of  exclusion  extends  only  to  lawful  marriage,  or,  at 
least,  such  marriages  as  are  innocent  in  contemplation  of  law. 
Thus,  upon  the  trial  of  a  party  for  bigamy,  a  woman  with  whom 
the  second  marriage  was  had  was  held  to  be  a  competent  witness 
for  the  reason  that  the  second  marriage  was  void.  But  if  the 
proof  of  the  Hrst  marriage  was  doubtful,  and  the  fact  of  the  sec- 
ond marriage  was  in  controversy,  the  same  principle  would  ex- 
clude the  second  wife  also.  But  where  the  first  Avife's  testimony 
is  inadmissible,  she  may  still  be  produced  in  Court  for  the  pur- 
pose of  being  identified;  and  this,  although  the  proof  thus  fur- 
nished may  fix  a  criminal  charge  upon  her  husband.  There  are 
two  modes  of  proving  a  marriage  so  as  to  exclude  the  husband  or 
wife  from  being  witnesses  for  or  against  each  other;  one  is  by 
proof  of  actual  marriage,  and  the  other  is  by  general  reputation 
and  by  cohabitation  or  by  proof  of  the  admission  of  the  defend- 
ant. There  is  still  another  mode,  M'hich  is  sometimes  resorted  to; 
that  is,  by  an  examination  of  the  Avitness  on  his  or  her  voir  dire. 
For  though,  if  the  marriage  is  established,  the  witness  is  incom- 
petent, subject  to  the  qualification  that  a  married  woman  is  a 
competent  witness  against  her  husband  to  proA'C  personal  vio- 
lence, used  by  the  husband  against  the  Avife,  or  to  prove  that  the 
defendant  forcibly  abducted  and  married  her,  provided  the  force 
Avas -continued  up  to  the  marriage;   so  she   is  a  competent  Avit- 

wliile  traveling  in  the  highway  witli  her  husband,  and  in  a  A-ehicle  driven  by  her, 
his  declarations  made  in  her  absence,  as  to  the  cause  and  circumstances  of  the 
accident,  and  his  previous  knowledge  of  the  disposition  of  the  horse,  and  his 
statements,  showing  that  knowledge,  are  inadmissible  in  evidence  for  defend- 
ants. Sarah  E.  Shaw  v.  Boston  and  Worcester  Railroad  Corporation^  8  Gray,  45. 
^  Hex  V.  Sergeant,  1  Ky.  aiid  M.  352. 


132  ECCLESIASTICAL  LAW. 


ness  against  her  husband  on  an  indictment  for  a  rape,  or  for  a 
conspiracy  to  commit  a  rape  upon  her  own  person.  And  it  may 
now  be  regarded  as  settled  that  the  wife  is  a  competent  witness 
in  all  cases  of  alleged  personal  injury;  yet  the  practice  is,  where 
the  husband  and  wife  are  incompetent,  to  receive  their  evidence 
notwithstanding  their  incompetency,  when  the  party  Avhose  priv- 
ilege it  is  to  object  elects  to  do  so. 

If  the  parties,  as  we  have  previously  stated,  were  not  law- 
fully married  they  are  competent  as  Avitnesses  for  and  against 
each  other;  but  that  statement  should  be  received  with  this 
qualification,  that  where  the  acknowledged  relation  by  the  par- 
ties of  husband  and  wife  exists,  it  is  not  competent  for  another 
person  to  introduce  evidence  tending  to  establish  the  illegal- 
ity, the  parties  themselves  recognizing  and  believing  the  rela- 
tion to  be  lawful. 

Before  leaving  this  question,  we  will  call  attention  to  the  fact 
that  where  the  husband  and  wife  are  indicted  for  a  joint  offense, 
their  declarations  are  received  for  and  against  each  other,  to  the 
same  extent,  and  to  the  same  extent  only,  that  the  declarations 
of  other  joint  parties  would  be  received,  without  reference  to 
this  peculiar  relationship.^  The  declarations  of  either  husband 
or  wife  are,  however,  receivable  in  evidence  for  or  against  each 
other  when  they  constitute  a  part  of  the  res  gestce,  which  are 
material  to  be  proved;  as  where  the  husband  obtained  an  insur- 
ance on  the  wife's  life  as  a  person  in  health,  she  being  in  fact 
diseased,^  or  in  an  action  by  the  husband  against  a  third  person 
for  beating  his  wife  (what  she  said,  at  the  time  she  was  beaten, 
is  admissible  in  evidence  as  part  of  the  res  f/estcc),^  or  for  en- 
ticing her  away,^  or  in  an  action  against  the  husband  for  the 
board  of  his  wife  for  having  turned  her  out  of  doors. ^  The 
declarations  of  the  wife  are  also  admissible  when  made  by  her 
after  marriage  against  the  husband,  in  tavor  of  a  creditor,  in  re- 
spect to  a  debt  })reviously  due  in  an  action  against  the  husband 
and  wife  for  the  recovery  of  the  debt.*^ 

^  CommonweaUh  v.  Rohhina,  3  Pick.  G3 ;   Commonwealth  v.   Briggs,  5  Pick. 
429;  Evans  v.  Smith,  5  Monroe,  3G.S-4 ;  Turner  v.  Coe,  5  Conn,  1)3. 
^  Ai^erson  v.  Lora  Kinaird,  (i  E<a«t,  1H8. 

^Thompson  v.  Freeman.,  Skin.  ^102.        ^Gilchrist  v.  Bnt/lcss,  H  Watts,  355. 
»  Walton  V.  Greene,  1  C.  and  P.  C>2\.        <^  JJrown  v.  Caselle,  0  Blackf.  147. 


EXCLUSION  OF  EVIDENXE.  133 


CHAPTER  VI. 

THE   EXCLUSION   OF   EVIDENCE   BASED  UPON    PUBLIC   POLICY. 

It  will  be  observed  that  this  ground  of  exclusion  is  not 
founded  upon  the  incompetency  of  the  witness,  but  upon  the  in- 
admissibility of  the  evidence,  although  the  witness  may  be  com- 
petent. The  principle  of  the  rule  of  law  which  excludes  certain 
evidence  is  based  upon  grounds  of  public  policy,  because  greater 
mischief  would  probably  result  from  legalizing  its  admission  than 
from  wholly  rejecting  it.  This  principle  of  exclusion,  as  we 
have  previously  seen,  applies  to  the  confidential  communications 
between  husband  and  wife.  It  also  applies  to  professional  com- 
munications, secrets,  and  awards  of  state,  confidential  communi- 
cations between  counselors,  solicitors,  or  attorneys  of  the  party 
and  the  client ;  clerks  of  counselors,  solicitors,  or  attorneys ; 
clergymen  and  medical  persons,  to  a  certain  extent.^ 

^  The  confessions  of  a  psirty,  voluntarily  made,  to  members  of  the  same 
Church,  may  be  given  in  evidence  on  his  trial  for  the  crime  or  misdemeanor  so 
confessed  by  him.  Commonicealth  v.  Alpheus  Drake,  L5  Mass.  161.  Confes- 
sions made  to  a  clergyman  or  priest  for  the  sake  of  easing  the  culprit's  con- 
science may  be  given  in  evidence.  Peake  Ev.  253,  Am.  from  5th  Lond.  Ed. 
In  the  case  of  Rex  v.  Gillam,  very  lately  reserved  for  the  opinion  of  the  twelve 
judges,  and  argued  before  them  in  Easter  term,  1828,  the  prisoner  had  been 
tried  and  convicted  for  murder,  principally  upon  the  evidence  of  his  own  con- 
fessions to  the  jailor  and  the  mayor.  These  confessions  the  prisoner  had  been 
induced  to  make  by  the  previous  exertion  of  religious  persuasions  on  the  part 
of  the  chaplain  of  the  jail  and  under  the  influence  of  his  representations  of  the 
Christian  necessity  and  benefit  of  confessing.  The  judges  were  of  opinion 
that  the  confessions  had  been  properly  received,  and  that  the  conviction  was 
right,  principally  upon  the  ground  it  is  understood  that  there  were  no  temporal 
hopes  of  benefit  or  forgiveness  held  out,  and  that  such  hopes,  if  referable 
mcTely  to  a  future  state  of  existence,  are  not  within  the  principle  on  which  the 
rule  for  excluding  confessions  obtained  by  improper  influence  is  founded. 
2  Russ.  on  Cr.  048,  2d  Lond.  Ed.  Sed  vide  Smith's  Case,  New  York  City 
Hall  Recorder,  Vol.  ii,  page  77.  As  to  confessions  generally,  see  2  Russell,  64^^, 
Archb.  PI.  and  Ev.  Crim.  Cases  108,  4th  Lond.  Ed.  Commomcealth  v.  Knapp, 
9  Pick.  496. 

By  the  capitularies  of  the  French  kings  and  some  other  Continental  codes 
of  the  Middle  Ages,  the  clergy  were  not  only  excused,  but,  in  some  cases, 
were  utterly  prohibited  from  attending  as  witnesses  in  any  cause.  Clerici  de 
judicii  sui  cognitione  non  cognatur  in  publicum  dicere  testimonium.      Capif. 

10 


134  ECCLESIASTICAL  LAW. 


The  secrets  of  State,  from  motives  of  public  policy,  are  not 
allowed  to  be  disclosed,  whether  the  matter  concerns  the  adrain 
istration  of  the  government  or  the  administration  of  penal  law. 
Thus,  in  criminal  trials,  the  names  of  the  persons  employed  in  the 
discovery  of  the  crime  are  not  permitted  to  be  disclosed  any 
further  than  is  essential  to  a  fair  trial  of  the  question  of  the  pris- 
oner's innocence  or  guilt ;  and  in  public  prosecutions,  no  question 
can  be  put  which  tends  to  reveal  the  name  of  the  secret  informer 
of  the  government,  even  though  the  question  be  propounded  to 
the  witness  in  order  to  elicit  the  fact  that  he  was  himself  the 
informer.^  A  full  opportunity  should  be  given  to  discuss  the 
truth  of  the  evidence  against  the  prisoner;  but  such  opportunity 
should  not  be  carried  to  the  extent  of  ferreting  out  the  agencies 
of  the  government  employed  for  the  detection  of  crime.  Hence, 
it  appears  that  a  witness  who  has  been  employed  to  collect  infor- 
mation for  the  government  will  not  be  permitted  to  disclose  the 
name  of  his  employer,  or  the  nature  of  the  connection  between 
them,  or  the  name  of  any  person  in  the  channel  of  communica- 
tion with  the  government  or  its  officers ;  but  the  witness  may  be 
asked  whether  he  made  any  communications,  and  if  he  did, 
whether  the  person  to  whom  the  information  was  communicated 
was  a  magistrate  or  not.  ^ 

The  official  transactions  between  the  heads  of  the  depart- 
ments of  the  general  or  State  governments,  their  officers,  clerks, 
subordinates,  and  agents,  are  regarded  in  general  as  privileged 
communications.  Thus,  a  military  officer  acting  in  subordina- 
tion to  his  superior,  or  to  the  President  of  the  United  States,  or  to 
the  Governor  of  a  State,  his  communications,  made  in  the  course 

Reg.  Francorum,  lib.  7,  §  118  (A.  D.  827).  TJt  nulla  ad  testimonia  dicendum 
ecclesiastici  cvjus  lihet  puhetnr  persona.  Id.  g  91.  See  Leges  Barbar.  Antiq. 
Vol.  iii,  pp.  313,  31G;  Leges  Laiigobardicae  in  the  same  collection,  Vol.  i,  pp. 
184,  209,  237.  But  from  the  Con.stitutions  of  King  Ethelred,  which  provide 
for  the  punishment  of  priests  guilty  of  perjury — si  presbyter  alicvji  inveniatur 
ill /also  tcstimonio  vel  in  perjurio — it  would  seem  that  the  English  law  of  that 
day  did  not  recognize  any  distinction  between  them  and  the  laity  in  regard  to 
the  obligation  to  testify  as  witnesses.  See  Leges  Barbar.  Antiq.  Vol.  iv,  p.  294; 
Ancient  Laws  and  Inst,  of  England,  Vol.  i,  p.  317,  §  27 ;  1  Greenleaf,  344. 

^  Rex  V.  Hardy,  24  Howell  St.  Tr.,  758.  Attorney-general  v.  Briant,  15  Law 
Journal  U.  S.  ox.  ch.  205. 

2  1  Phillips's  Ev.,  180-181.     Utiited  States  v.  Moses,  4  Wash.  72G. 


EXCLUSION  OF  EVIDENCE.  135 

of  his  official  duty,  are  privileged ;  and  this  privilege  extends 
to  all  correspondence  between  an  agent  of  the  government  and 
either  of  the  departments  thereof.  The  interest  of  the  State  will 
not  be  allowed  to  suffer  by  requiring  such  agents  or  officers 
to  make  disclosures.  The  Pi'esident  of  the  United  States  and 
the  Governors  of  the  several  States  are  under  no  obligation  to 
disclose  information,  or  to  produce  papers  communicated  or  in- 
trusted to  them,  when,  in  their  own  judgm.ent,  the  disclosure  or 
the  production  of  such  papers  would  be  inexpedient,  on  public 
considerations.  Where  the  law  will  not,  from  motives  of  public 
policy,  compel  the  production  of  papers,  because  they  are  privi- 
leged, it  will  not  receive  nor  suffer  secondary  evidence  of  their 
contents  to  be  given.  ^ 

Communications,  though  made  to  an  official  person,  are  not 
regarded  as  privileged  Avhere  they  are  not  made  in  the  discharge 
of  a  public  official  duty.  A  Senator  of  the  United  States,  it 
seems  to  have  been  held,  may  be  examined  as  to  what  took  place 
in  a  secret  executive  session,  where  the  Senate  refused,  on  the 
pai'ties'  application,  to  remove  the  injunction  of  secrecy.^  This 
decision,  however,  is  irreconcilable  with  the  preceding  rule ;  for  if 
the  matters  occurring  in  secret  executive  session  in  the  Senate 
are  inquirable  into,  then  the  object  of  the  rule  may,  in  general,  be 
defeated.  Lord  Ellenborough  held,  that  though  one  member  of 
Parliament  might  be  asked  as  to  the  fact  that  another  member 
took  part  in  debate,  yet  the  examiner  was  not  privileged  to  go 
further,  and  to  inquire  of  the  witness  what  had  been  said  by  such 
member  during  the  debate. 

The  proceedings  of  the  grand  jury,  upon  the  same  principle, 
are  regarded  as  privileged;'  but  this  rule  of  exclusion  must  not 

1  Yoter  V.  Saum,  6  Watts,  156. 

^  Laio  V.  Scott^  5  Har.  and  John.  43G. 

^  Nothing  could  better  illustrate  the  wisdom  of  the  rule  which  holds  the 
deliberations  of  the  jury  room  to  be  inviolable ;  and  precludes  jurors  from  giving 
evidence  of  their  own  misconduct,  of  the  reason  and  ground  of  their  determi- 
nations, and  the  motives  which  govern  their  conduct.  These  are  different  in 
different  jurors ;  some  being  influenced  by  one  reason  or  motive,  and  others  by 
different  ones.  If  we  required  perfect  unanimity  in  their  reasoning,  as  well  as 
in  the  results,  agreements  would  become  as  rare  as  disagreements  now  are. 

Men  of  strong  minds  and  sound  judgments,  who  are  very  sure  to  come  to 
wise  and  just  conclusions,  would,  if  called  upon  to  state  the  grounds  of  th^ir 


136  ECCLESIASTICAL  LAW. 


be  stated  too  broadly.  Bigelow,  Justice,  said  that  "the  extent 
of  the  limitation  upon  the  testimony  of  the  grand  jurors  is  best 
defined  by  the  terms  of  their  oath  of  office,"  by  which  "  the 
commonwealth's  counsel,  their  fellows',  and  their  own,  they  are 
to  keep  secret,"  They  can  not,  therefore,  be  permitted  to  state 
how  any  member  of  the  grand  jury  voted,  or  the  opinion  ex- 
pressed by  their  fellows,  or  themselves,  upon  any  question  before 
them  ;  nor  to  disclose  the  fact  that  an  indictment  for  felony  has 
been  found  against  any  person  not  in  custody,  or  under  cogni- 
zance ;  nor  to  state  in  detail  the  evidence  on  which  the  indict- 
ment is  founded.  To  this  extent  the  free,  impartial,  unbiased 
administration  requires  the  proceedings  before  the  grand  jury  to 
be  kept  a  secret.  By  no  other  means  can  perfect  freedom  of 
deliberation  and  opinion  among  jurors,  and  the  ends  of  an  ener- 
getic administration  of  criminal  justice  be  securely  obtained. 
But  we  are  not  aware  that  the  sanction  of  secrecy  has  ever  been 
extended  beyond  this.  We  know  of  no  authority  that  carries  the 
rule  of  exclusion  further ;  and  we  can  see  no  ground  of  policy  or 
reason  for  its  extension.^  A  grand  juror  was,  therefore,  held 
competent  to  prove  that  a  certain  witness  was  not  before  the 
grand  jury  at  the  finding  of  a  certain  indictment.^ 

This  same  principle,  founded  upon  public  policy,  in  ecclesi- 
astical trials,  or  investigations,  would  exclude  the  official  trans- 
actions of  the  heads  of  the  Church,  and  their  subordinate  confi- 
dential agents,  as  well  as  communications  pertaining  to  the 
government  of  the  Church,  in  their  several  departments.  Ap- 
plying the  analogy  of  the  civil  law  to  the  proceedings  of  investi- 
gating committees,  their  actions,  while  engaged  in  preliminary 


opinions,  often  give  very  insufficient  and  unsatisfactory  reasons  for  their  decis- 
ions. The  secrecy  of  the  deliberations,  and  the  discussions  of  the  jury,  and  the 
exemption  of  jurors  from  the  liability  of  being  questioned,  as  to  their  motives 
and  grounds  of  action,  are  highly  important  to  the  freedom  and  independence 
of  their  decisions.     Hannvm  v.  Belchertown,  19  Pick,  813. 

^  Commomiiealth  v.  HiU,  1 1  Cnsh.  140.  Freeman  v.  Arkell,  1  Car.  and  Payne, 
1.3.J-137.     Koper  v.  Cation,  3  Watts,  56.     1  Grcenl.  Ev.  sec.  252. 

*  Where  a  witness,  before  the  grand  jury,  has  committed  perjury  in  his  testi- 
mony, either  before  them,  or  at  the  trial,  the  reasons  mentioned  in  the  text  for 
excluding  the  testimony  of  grand  jurors  does  not  prevent  them  from  being  called 
as  witnesses  to  prove  what  such  witness  testified  before  the  grand  jury.  1  Chit- 
t3''s  Crim.  Law,  page  317.     Wharton's  Am.  Crim.  Law,  130. 


EXCLUSION  OF  EVIDENX'E.  137 

investigation,  ought  to  be  privileged  and  not  to  be  admitted  as 
evidence  upon  the  triah  ~  To  require  the  members  of  a  committee 
to  state  what  they  said,  and  how  they  voted,  would  be  productive 
of  great  evil  and  mischief,  and  it  woukl  often  happen  that  cm* 
best  and  most  substantial  members  of  the  Church  would  refuse  to 
act,  if  their  action  was  to  be  subjected  to  the  severe  criticism  of 
a  trial.  Their  duties,  like  those  of  a  grand  jury,  are  simply  to 
inquire,  and  make  investigation,  where  a  party  is  accused  of  an 
offense  or  the  violation  of  any  disciplinary  rule,  and  report  the 
result  of  such  investigation  to  the  proper  tribunals  of  the  Church. 
-Confidential  communications  made  to  solicitors,  attorneys,  and 
counselors-at-law,  are,  by  the  civil  law,  both  here  and  in  Eng- 
land, protected ;  and  such  counselor,  attorney,  or  solicitor  of  a 
party  can  not  be  compelled  to  disclose  communications  made  to 
him,  or  to  disclose  papers,  documents,  or  letters  delivered  to  him 
while  acting  in  that  relation.  Matters  coming  within  the  ordinary 
scope  of  professional  employment,  or  papers,  documents,  and  let- 
ters received  by  such  solicitor,  attorney,  or  counselor,  in  his 
professional  capacity,  either  from  a  client,  or  on  his  account,  in 
the  transaction  of  his  business  in  the  course  of  their  employment, 
and  known  onlj'  through  their  professional  relation  to  the  client, 
they  are  legally  bound  to  withhold;  and  they  will  not  be  com- 
pelled to  disclose  the  information,  or  produce  the  papers  in  any 
court,  civil  or  ecclesiastical,  as  a  party  or  as  a  witness.  This 
rule  is  of  very  ancient  date,  coming  down  to  us  as  a  part  of  the 
common  law;  not  because  of  any  particular  importance  that  the 
laAv  attributes  to  the  legal  profession,  does  it  throw  around  it  a 
protection  and  exemption  denied  to  other  classes,  but  it  is  solely 
founded  on  the  regard  which  the  law  manifests  for  public  justice. 
Experience  has  proved  that,  in  the  transaction  of  legal  business, 
we  can  not  dispense  with  the  aid  of  men  skilled  in  the  practice 
of  the  law;  and  in  those  matters  that  affect  rights  and  pre- 
scribe remedies  which  form  the  basis  of  all  judicial  proceedings, 
if  such  exemption  did  not  obtain,  who  Avould  dare  consult  a  legal 
adviser,  with  a  view  to  the  enforcement,  or  the  vindication  of  his 
I'ights,  when  assailed?  Chief  Justice  Shaw  said:  "By  this  mle 
it  is  well  established  that  all  confidential  communications  between 
attorney  and  client  are  not  to  be  revealed  at  any  future  period  of 
time,  nor  in  any  action  or  proceeding  between  other  persons;  nor 


138  ECCLESIASTICAL  LAW. 

after  the  relation  of  attorney  and  client  has  ceased.  This  privi- 
lege is  that  of  the  client,  and  not  of  the  attorney,  and  never 
ceases  unless  waived  by  the  client."^ 

This  privilege  is  not  confined  to  the  case  of  communications 
made  to  a  counselor,  solicitor,  or  attorney,  with  a  view  to  the 
prosecution  or  defense  of  a  suit,  or  legal  process,  pending,  or 
immediately  contemplated  at  the  time  of  the  connuunication,  but 
it  extends  to  all  communications  made  to  an  attorney  or  coun- 
selor, duly  qualified  and  authorized  as  such,  and  applied  to  by 
the  party  in  that  capacity,  with  a  view  to  obtain  his  advice  and 
opinion  in  matters  of  law,  in  relation  to  his  legal  rights,  duties, 
and  obligations,  whether  with  a  view  to  the  prosecution  or  defense 
of  a  suit,  or  other  lawful  object.^  So  numerous  and  complex 
are  the  laws  by  which  the  rights  and  duties  of  citizens  are  gov- 
erned; so  important  is  it  that  they  should  be  permitted  to  avail 
themselves  of  the  superior  skill  and  learning  of  those  who  are 
sanctioned  by  the  law,  as  its  ministers  and  expounders,  both  in 
ascertaining  their  rights  in  the  country,  and  maintaining  them 
most  safely  in  courts,  without  publishing  those  facts  which 
they  have  a  right  to  keep  secret,  but  which  must  be  disclosed  to 
a  legal  adviser,  or  advocate,  to  enable  him  to  perform  successfully 
the  duties  of  his  office,  that  the  law  has  considered  it  the  wisest 
policy  to  encourage  and  sanction  this  confidence^  by  requiring 
that  on  such  facts  the  mouth  of  the  attorney  shall  be  forever 
sealed ;  but  this  privilege  of  exemption  from  testifying  to  facts 
actually  known  to  the  witness  is  in  contravention  to  the  general 
rules  of  law,  and  is  not  to  be  extended  beyond  the  limits  of  that 
principle  of  policy  upon  which  it  is  allowed.  ''It  is  extended," 
says  Mr.  Justice  Shaw,  ''to  no  other  person  than  an  advocate  or 
legal  adviser,  and  those  persons  whose  intervention  is  strictly 
necessary  to  enable  the  client  and  attorney  to  communicate  with 
each  other,  either  as  interpreter,  attorney,  or  clerk.  This  privi- 
lege is  confided  by  counselors,  attorneys,  and  solicitors,  when 
applied  to  professionally,  and  when  acting  in  that  capacity."^ 

If  the  attorney  is  not  applied  to  in  his  official  character,  the 

'  Hutton  V.  Rohinson,  14  Pick,  421.     2  Starkio  on  Ev.,  395.     Baker  v.  Ar- 
ndlU,  1  Kane's  R.  258. 

2  Greenouffh  v.  Gaskell,  1  Mylne  and  Keene,  98.    Foster  v.  Hall.  12  Pick,  69. 
*  Wilson  V.  Basiall,  4  Tenn.  R.  753. 


EXCLUSION  OF  EVIDENCE.  139 

law  implies  no  such  confidence,  and  the  attorney  or  counselor 
then  stands  like  other  men ;  but  if  his  advice  is  solicited  in  his 
professional  character,  then  the  rule  applies.  There  are,  how- 
ever, many  cases  in  which  an  attorney  is  employed  in  transacting 
business  not  properly  professional,  and  where  the  same  might  be 
transacted  by  any  other  person  or  agent.  In  such  case,  the 
fact  that  the  agent  or  person  employed  to  transact  the  business 
sustains  the  character  of  an  attorney,  does  not  render  the  com- 
munication attending  it  privileged,  and  it  may  be  testified  to 
by  him.  Mr.  Justice  Buller  says  that  ''  the  privilege  is  confined 
to  the  case  of  a  counselor,  solicitor,  or  attorney ;  and  it  must  be 
proved  that  the  information  was  communicated  to  the  witness 
in  one  of  those  characters ;  for  if  he  be  employed  merely  as  a 
steward,  or  as  an  agent  without  reference  to  his  professional 
character,  he  may  be  examined.  So  where  the  matter  is 
communicated  by  the  client  to  his  attorney  for  purposes  in  no 
way  connected  with  the  object  of  the  retainer,  and  the  employ- 
ment of  the  attorney,  as  such,  he  may  be  examined.^  The 
difference  is,  whether  the  communication  was  made  by  the  client 
to  the  attorney  in  confidence,  as  instructions  for  conducting  his 
cause,  or  a  mere  gratis  dictum.^ 

1  Cobden  v.  Hendricks,  4  Tenn.  R.  482. 

2  In  respect  .to  the  next  exception,  the  Court  are  of  the  opinion  that  the 
testimony  of  Mr.  Robinson  was  rightly  rejected.  Mr.  Robinson  very  properly 
submitted  it  to  the  Court  to  determine  upon  the  facts  disclosed  whether  he 
should  answer  or  not,  having  no  wish  either  to  volunteer  or  to  withhold  his 
testimony.  The  rule  in  such  case  is  that  the  privilege  of  confidence  is  the  priv- 
ilege of  the  client,  and  not  of  the  attorney,  and,  therefore,  whether  the  facts 
shall  be  disclosed  or  not,  must  depend  upon  the  just  application  of  the  rule  of 
law,  and  not  upon  the  will  of  the  witness. 

Mr.  Robinson  states  that  he  has  no  knowledge  of  the  subject  except  what 
he  derived  from  the  communications  of  Nehemiah  Foster,  the  grantor;  that  he 
was  in  fact  an  attorney  at  law,  admitted  and  sworn  ;  that  he  announced  himself  to 
Foster  as  such  before  the  conversation  commenced,  and  that  he  was  consulted 
in  that  capacity,  and  gave  his  advice  in  that  capacity.  That  no  fee  was  paid  is 
immaterial,  the  legal  obligation  to  pay  a  quantum  meruit  being  in  this  respect 
as  effectual  a  retainer  as  an  actual  payment.  Although  the  general  rule,  that 
matters  communicated  by  a  client  to  his  attorney  in  professional  confidence 
the  attorney  shall  not  be  at  any  time  afterwards  called  upon  or  permitted  to 
disclose  in  testimony  is  very  well  established;  still  there  is  some  difference  of 
opinion  as  to  its  precise  limits.  Some  points  seem  clearly  settled  by  the  cases. 
It  is  confined  strictly  to  communications  to  members  of  the  legal  profession,  a.s 


140  ECCLESIASTICAL  LAW. 

So  strictly  is  the  rule  held,  that  the  privilege  extends  only  to 
communications  made  by  the  client  to  his  attorney  for  the  pur- 
barristers  and  counselors,  attorneys  and  solicitors  (  Wilson  v.  Rastall,  4  T.  R. 
759  ),  and  those  whose  intervention  is  necessary  to  secure  and  facilitate  the 
communication  between  attorney  and  client  as  interpreters  {Du  Barre  v.  Liveiie, 
Peake's  Rep.  78),  agents  {Perkins  v.  Hawkshmv,  2  Stark.  Rep.  239),  and  attor- 
ney's clerks.     Taylor  v.  Foster,  2  Car.  and  P.  195. 

It  seems  also  well  established  that  the  matter  thus  disclosed  in  professional 
confidence  can  not  be  disclosed  at  any  future  time ;  nor  can  it  be  given  in  evi- 
dence in  another  suit,  although  the  client  from  whom  the  communication  came  is 
no  party  and  has  no  interest  in  it.  Bex  v.  Withers,  2  Camp.  578.  And  it  is 
the  well-known  modification  of  the  rule  tiiat  the  privilege  of  confidence  is  that 
of  the  client  and  not  of  the  attorney;  and,  therefore,  the  latter  shall  not  be 
permitted  to  disclose  it  by  his  testimony,  if  ever  so  much  inclined  to  do  so, 
unless  released  from  the  obligation  by  the  client.  Bui.  N.  P.  284,  Petrie's  case, 
cited  4  T.  R.  759. 

But  the  point  alluded  to  about  which  some  difference  of  opinion  has  existed 
is  this :  whether  the  subject  matter  to  which  the  privilege  of  confidential  com- 
munication extends  is  confined  to  those  communications  which  are  made  to 
counsel  and  attorneys,  in  relation  to  the  prosecution  or  defense  of  a  suit  at  law, 
existing  or  contemplated ;  or  whether  it  embraces  other  cases  when  a  person  has 
occasion  to  avail  himself  of  the  superior  knowledge  and  skill  of  a  professional 
man  in  understanding  his  legal  rights,  and  when,  in  order  to  obtain  that  infor- 
mation, he  is  under  the  necessity  of  stating  facts  which  he  has  a  right  to  keep 
in  strict  secrecy. 

I  am  not  aware  that  any  of  the  earlier  cases  have  turned  upon  this  distinc- 
tion, or  that  the  point  has  been  directly  made  till  recently. 

In  the  text  writers  the  rule  is  laid  down  in  terms  broad  enough  to  include 
other  occasions,  when  parties  have  need  of  the  aid  of  a  professional  adviser, 
and  one  is  applied  to  in  that  character,  and  for  that  purpose. 

Bac.  Abr.  Evidence  A.  3 :  ''  It  seems  agreed  that  counselors,  attorneys,  or 
solicitors  are  not  obliged  to  give  evidence  or  to  discover  such  matters  as  come 
to  their  knowledge  in  the  way  of  their  pi'ofession;  for,  by  the  duty  of  their 
offices,  they  are  obliged  to  conceal  their  clients'  secrets,  and  every  thing  they  are 
intrusted  with  is  sub  siyillo  confessoris ;  for,"  etc. 

Phillips  on  Evidence  ((ith  Ed.)  131:  "Confidential  communications  be- 
tween attorney  and  client  are  not  to  be  revealed  at  any  period  of  time — not  in 
an  action  between  third  persons — not  after  the  proceeding  to  which  they  re- 
ferred is  at  an  end,  nor  after  the  dismissal  of  the  attorney.  The  privilege  of  not 
being  examined  to  such  points  as  have  been  communicated  to  the  attorney, 
while  engaged  in  his  professional  capacity,  is  the  privilege  of  the  client,  not  of 
the  attorney,  and  it  never  ceases.  It  is  not  sufficient  to  say  the  cau.se  is  at  an 
end; — tlie  mouth  of  such  a  person  is  shut  forevor.'  Buller,  J.,  4  T.  R.  759.  If 
the  party  waive  his  privilege  the  witness  may  of  course  be  examined." 

I  will  briefly  allude  to  the  cases  in  which  contrary  doctrines  upon  this  point 
have  been  held.  In  Robson  v.  Kemp,  at  nisi  jjrins,  4  Esp.  R.  235,  and  5  Esp. 
R.  52,  it  was  ruled  by  Lord  Ellenborough,  that  an  attorney  emi)loyed  by  consent 


EXCLUSION  OF  EVIDENCE.  141 

pose  of  obtaining  legal  advice,  that  in  a  late  case  it  was  held  that 
a  communication  made  by  a  client  to  his  attorney  for  the  purpose? 

of  two  parties  in  preparing  a  deed  from  one  to  the  other,  can  not  bo  ex- 
amined as  to  what  he  so  become  informed  of  in  preparing  the  deed,  in  au  action 
by  the  assignees  of  one  against  the  other,  suggesting  fraud  in  the  conveyance. 
Cromack  v.  Heathcoie,  2  Brod.  &  B.  4;  S.  C.  4  Moore's  R.  357.  In  this  case 
it  was  held  that  communications,  made  by  a  party  to  an  attorney,  are  confiden- 
tial, although  they  do  not  relate  to  a  cause  existing  or  in  progress  at  the  time 
they  were  made;  and  where  an  attorney  was  applied  to  by  a  father  to  prepare  a 
deed  by  which  his  property  was  to  be  assigned  to  his  sons,  and  he  stated  there 
was  no  consideration,  though  the  attorney  refused  to  prepare  it,  and  it  was  after- 
wards drawn  by  another,  it  was  held  that  such  attorney  was  precluded  from 
giving  evidence  of  that  fact.     C.  C.  P.  Easter  Term,  1820. 

But  in  Williams  v.  Mudie,  1  Car.  &  P.  158,  it  was  ruled  by  Abbott,  C.  J., 
at  nisi  priiis,  that  whatever  is  communicated  for  the  purpose  of  bringing  or 
defending  an  action  is  privileged,  but  not  otherwise.  S.  C.  reported  Ryan  and 
Moody,  34,  Hilary  Term,  1824.     See  the  note  in  Ryan  and  Moody,  35. 

Wadsicorth  v.  Ea?nshaiv,  2  Brod.  &  B.  5,  note;  4  Moore,  358.  The  same 
point  was  ruled  by  Abbott,  C.  J.,  at  7iisi  prius,  March,  1829. 

Broud  V.  Pitt,  3  Car.  &  P.  518.  "In  this  case  it  was  ruled  by  Best, 
C.  J.,  at  nisi  pjiiis,  that  no  communications  made  to  an  attorney  are  privileged 
but  such  as  are  made  for  the  purpose  of  the  attorney's  commencing  or 
defending  a  suit.  These  cases  are  certainly  of  great  weight  in  point  of 
authority;  and,  although  they  are  decisions  at  nisi  prius,  would  be  deserv- 
ing of  much  consideration  and,  if  they  stood  alone,  would  seem  almost  de- 
cisive. But  it  is  obvious  that  they  are  directly  opposed  to  the  7iisi  prius 
decisions  of  Lord  Kenyon  and  to  the  case  of  Cromack  v.  Heathcote,  which 
was  decided  by  the  Common  Pleas  upon  argument.  The  7iisi  prius  case 
of  Wadsworth  v.  Hamshaio  was  alluded  to  not  having  then  been  reported,  and 
Dallas,  C.  J.,  says:  "One  is  staggered  at  first  on  being  told  that  there  are 
decided  cases  which  seem  at  variance  with  first  principles  the  most  clearly  estab- 
lished, etc.,  and  I  know  of  no  such  distinction  as  that  arising  from  the  attorney 
being  employed  or  not  employed  in  the  cause.  A  client  goes  to  give  instruc- 
tion touching  a  deed,  and  the  communication  must  be  deemed  confidential  as 
between  attorney  and  client,  though  the  attorney  refused  the  employment." 
And  Richardson,  J.,  says:  "Suppose  the  case  of  an  attorney  cpnsulted  on  the 
title  to  an  estate,  where  there  was  a  defect  in  the  title,  can  it  be  contended  that 
he  would  ever  be  at  liberty  to  divulge  the  flaw?  I  never  heard  of  the  rule  being 
confined  to  attorneys  employed  in  the  cause." 

Bramwell  v.  Lucas,  4  Dowl.  &  Ryl.  367,  S.  C.  2  Barn.  &  Cressw.  745:  "A 
communication  made  by  a  client  to  his  attorney  to  obtain  information  as  to  a  mat- 
ter of  fact,  and  not  to  obtain  his  legal  advice,  is  not  privileged.  A  trader, 
at  the  suggestion  of  his  attorney,  called  a  meeting  of  the  creditors,  and  the 
attorney  advised  him  to  stay  at  his  office  till  he  (the  attorney)  could  ascertain 
whether  the  creditors  would  give  him  a  safe  conduct;  and  he  did  stay  there  sev- 
eral hours  to  avoid  arrest.  The  object  was  to  show  this  fact  as  an  act  of  bank- 
ruptcy, and  the  question  was  whether  this  was  a  privileged  communication.     It 


142  ECCLESIASTICAL  LAW. 

not  of  asking  his  legal  advice  or  of  consulting  him  upon  tech- 
nical points,  but  to  obtain  information  as  to  a  matter  of  fact,  is 

was  decided  that  it  was  not,  expressly  upon  the  ground  that  the  olyect  of  the 
question  was  to  get  information  as  to  a  matter  of  fact  whether  any  arrangement 
had  been  made  to  protect  the  client,  and  not  ibr  obtaining  the  legal  advice  or 
opinion  of  his  attorney.  This  certainly  implies  that  if  the  communication  had 
been  made  with  a  view  to  obtain  legal  advice  as  to  his  rights  though  it  had  no 
relation  to  prosecuting  or  defending  a  cause,  it  would  have  been  privileged. 
And  Abbott,  C.  J.,  said:  "Whether  the  privilege  extends  to  all  confidential 
communications  between  attorney  and  client  or  not,  there  is  no  doubt  that  it  is 
confined  to  communications  to  the  attorney  in  his  character  of  attorney.  A 
question  for  legal  advice  may  come  within  the  description  of  a  confidential 
communication,  because  it  is  part  of  the  attorney's  duty  to  give  legal  advice; 
but  a  question  for  information  as  to  a  matter  of  fact,  etc.,  where  the  character 
or  ofiice  of  an  attorney  has  not  been  called  into  action,  has  never  been  held 
with  the  protection,  and  is  not  within  the  principle  upon  which  the  privilege  is 
founded." 

Barkhurst  v.  Loioten,  2  Swanston,  21G,  before  Lord  Chancellor  Eldon,  in 
1819:  It  was  a  case  involving  inquiries  respecting  the  sale  of  an  advowson 
charged  to  have  been  simonical,  and  of  course  subjecting  the  parties  to  penal- 
ties. The  defendant  had  declined  answering  certain  questions  on  the  ground 
that  it  would  implicate  himself  by  involving  him  in  the  crime  of  simony.  God- 
frey, an  attorney,  was  called  to  answer  interrogatories  as  a  witness,  and  objected 
as  having  been  professionally  concerned  in  the  transactions  which  the  bill  char- 
acterized as  an  offense.  From  this  statement  I  understand  that  he  had  been 
consulted  as  to  the  legal  character  of  the  transactions,  not  that  he  had  been  re- 
tained in  any  suit  or  cause  pending  or  contemplated.  The  chancellor  says : 
"  Godfrey  stands  in  a  very  different  situation  (from  the  party),  insisting  not  that 
the  disclosures  would  tend  to  criminate  himself,  but  that  it  would  consist  of  a 
matter  of  which  he  could  obtain  a  knowledge  only  by  the  confidence  of  his  em- 
ployer. The  privilege  which  he  claims  is  the  privilege  not  of  the  attorney  but 
of  the  client,  and  is  founded  on  this  consideration  that  there  would  be  no 
safety  in  dealing  with  mankind  if  persons  employed  in  transactions  were  com- 
pelled to  stale  that  which  they  have  learned  only  by  this  species  of  confidence. 
But  the  moment  confidence  ceases  privilege  ceases,  and  the  attorney  must  an- 
swer as  any  other  witness."  And  the  examination  was  so  shaped  as  to  pro- 
tect him  from  disclosing  what  he  acquired  a  knowledge  of  from  his  profes- 
sional employment,  and  require  him  to  testify  as  to  all  other  matters. 

I  consider  this  case  as  carrying  with  it  the  authority  of  Lord  Eldon  to  this 
position,  that  an  attorney  is  precluded  from  disclosing  communications  made  in 
the  course  of  a  professional  employment,  and  for  the  purpose  of  giving  legal 
advice,  although  such  employment  was  not  immediately  connected  with  the  con- 
duct of  a  legal  proceeding. 

But  without  further  commenting  upon  the  authorities  I  will  cite  a  passage 
from  the  6th  edition  of  that  excellent  work,  Phillips  on  Evidence,  published  in 
1824.  It  is  not  to  be  found  in  the  earlier  editions,  and  probal)ly  if  was  not  till 
about  the  time  of  the  date  of  this  late  edition  that  the  question  had  been  dis- 


EXCLUSION  OF  EVIDENCE.  143 

not  privileged,  and  may  be  disclosed  by  the  attorney  if  called 
as  a  witness  in  a  cause/ 

tinctly  raised  and  discussed.  1  Phillips  134.  "This  privilege  of  the  client  is 
not  confined  to  those  cases  only  where  he  has  employed  the  attorney  in  a  suit 
or  cause,  but  extends  to  all  such  communications  as  are  made  by  him  to  the 
attorney  in  his  professional  character  and  with  reference  to  professional  busi- 
ness. If  any  attorney  were  to  be  consulted  on  the  title  to  an  estate,  he  would 
never  be  allowed  to  disclose  any  information  thus  communicated  to  him  to  the 
prejudice  of  his  client  2  Brod.  &  Bingh.  G.  Or  if  an  attorney  were  professionally 
employed  to  make  a  draft  of  an  assignment  of  goods,  which,  however,  he  de- 
clined to  make,  he  would  not  be  allowed  to  disclose  that  circumstance  iu  case  a 
question  should  arise  where  an  assignment  subsequently  drawn  by  another  at- 
torney was  fraudulent.     Cromack  v  Heatlicote^  2  Brod.  &  Bingh.  4. 

On  the  whole,  we  are  of  opinion  that,  although  this  rule  of  privilege,  having 
a  tendency  to  prevent  the  full  disclosure  of  the  truth,  ought  to  be  construed  strictly, 
yet  still,  whether  we  consider  the  principle  of  public  policy  upon  which  the  rule 
is  founded,  or  the  weight  of  authority  by  which  its  extent  and  limits  are  fixed, 
the  rule  is  noli  strictly  confined  to  communications  made  for  the  purpose  of  en- 
abling an  attorney  to  conduct  a  cause  in  court,  but  does  extend  so  as  to  include 
communications  made  by  one  to  his  legal  adviser  whilst  engaged  and  employed 
in  that  character,  and  when  the  object  is  to  get  his  legal  advice  and  opinion  as 
to  legal  rights  and  obligations;  although  the  purpose  be  to  correct  a  defect  of 
title  by  obtaining  a  release,  to  avoid  litigation  by  compromise,  to  ascertain  what 
acts  are  necessary  to  constitute  a  legal  compliance  with  an  obligation  and  thus 
avoid  a  forfeiture  or  claim  for  damages,  or  for  other  legal  and  proper  purposes 
not  connected  with  a  suit  in  court. 

The  rule  thus  qualified  is  still  open  to  many  well  defined  exceptions.  The 
person  consulted  must  be  of  the  profession  of  the  law,  and  it  is  not  enough  that 
the  party  making  the  communication  thinks  he  is.  Fountain  v.  Yozmg,  6  Esp. 
R.  113.  He  must  be  consulted  or  employed  in  the  particular  business  to  which 
it  relates.  Wilson  v.  Eastall,  4  T.  R.  753.  The  communication  must  be  made 
during  his  employment  and  not  before  (Bui.  N.  P.  284)  nor  after.  Cobden  v. 
Kendricky  4  T.  R.  432.  So  the  privilege  does  not  extend  to  matters  not  com- 
municated by  his  client  as  confidential,  but  facts  known  of  his  own  knowledge 
(Lord  Say  and  Seal's  case,  10  Mod.  40),  nor  to  the  fact  of  the  execution  of  a  deed, 
especially  if  attested  by  him  {Doe  v.  Andreics,  Cowp.  846),  nor  to  the  hand- 
writing of  the  client,  though  the  knowledge  of  it  has  been  acquired  in  con- 
sequence of  the  employment  {Hurd  v.  Moving,  1  Car.  &  P.  372),  nor  to  the 
fact  of  his  client  having  sworn  to  an  answer  i?i  Chancery  [Doe  v.  Andrews, 
Cowp.  846),  and  so  of  other  collateral  facts  not  confidentially  communicated. 

With  these  limitations  we  think  that  conformably  to  the  principle  npon 
which  the  rule  is  founded,  the  privilege  extends  to  communications  made  to  a 
legal  adviser,  duly  qualified  as  such,  employed  and  acting  in  that  capacity, 
where  the  object  of  the  party  is  to  obtain  a  more  exact  and  complete  knowledge 
of  the  law  affecting  his  rights,  obligations,  or  duties,  relative  to  the  subject  mat 
ter  to  which  such  communications  relate.     Foster  v.  Hall,  12  Pick.  89  et  seq. 

^  Bramwell  v.  Lucas,  2  Barn.  Cress.  &  Cress.  745. 


144  ECCLESIASTICAL  LAW. 

We  liave  said  that  communications  made  to  a  solicitor  or 
counselor  at  law  are  privileged  under  certain  restrictions.  It 
now  remains  in  this  connection  for  us  to  define  the  class  of  per- 
sons falling  within  this  category. 

Blackstone  says^  that  "an  attorney  at  law  is  one  that  is  put 
in  the  place,  stead,  or  room  of  another  to  manage  his  matters  of 
law."  They  are  now  formed  into  a  regular  corps,  and  are  ad- 
mitted to  the  execution  of  their  office  by  the  superior  courts  of 
Westminster  Hall,  and  in  this  country  usually  by  the  courts  of 
dernier  resort,  and  are  in  all  points  officers  of  the  respective 
courts  to  which  they  are  admitted,  and  usually  are  regarded  as 
officers  of  all  the  courts  of  record  in  the  State  where  they  are 
admitted  by  the  State  Courts.  They  have  many  privileges  on 
account  of  their  attendance  on  the  court,  and  for  that  and  other 
reasons  they  are  peculiarly  subject  to  the  censure  and  animadver- 
sion of  the  judges  for  malpractice  in  office.  No  man  can  practice 
as  an  attorney  in  any  of  those  courts  which  are  courts  of  record 
but  such  as  are  regularly  admitted  and  sworn  as  an  attorney  of 
that  particular  court,  or  of  some  superior  court,  including  by 
such  admission  the  right  so  to  do. 

In  our  ecclesiastical  tribunals,  created  for  the  purpose  of  en- 
forcing a  due  observance  of  the  canons  of  the  Church,  we  have 
no  separate  and  distinct  class  learned  in  ecclesiastical  law  who 
make  a  professional  business  of  it. 

The  Church  requires  but  one  qualification  to  stand  as  counsel 
or  adviser  in  the  prosecution  or  defense  of  an  accused  member, 
that  is,  that  the  person  so  acting  as  counsel  shall  be  a  member  of 
the  Church ;  and  such  person,  while  acting  in  such  relation, 
should  enjoy  the  same  privileges,  immunities,  and  exemptions  as 
are  enjoyed  by  attorneys  and  counselors  at  law.  "There  is," 
says  Mr.  Greenleaf,  "one  other  situation  in  which  the  exclusion 
of  evidence  has  been  strongly  contended  for  on  the  ground  of 
confidence  and  the  general  good,  namely,  that  of  clergymen,  and 
this  chiefly,  if  not  wholly,  in  reference  to  criminal  conduct  and 
proceedings,  that  the  guilty  conscience  may,  with  safety,  disbur- 
den itself  by  penitential  confessions,  through  the  spiritual  advice, 
instruction,  and  discipline,  seek  pardon  and  relief.     The  law  of 

*  3  Blackstone,  25. 


EXCLUSION  OF  EVIDENXE.  145 

papal  Rome  has  adopted  this  principle  in  its  fullest  extent,  not 
only  excepting  such  confessions  from  the  general  rules  of  evi- 
dence, but  punishing  the  priest  who  reveals  them."^ 

There  are  many  of  the  States  that  by  statute  have  provided 
that  no  minister  of  the  Gospel,  or  priest  of  any  denomination 
Avhatever,  shall  be  allowed  to  disclose  any  confessions  made  to  him 
in  his  professional  character  in  the  course  of  discipline  enjoined 
by  the  rules  or  practice  of  such  denomination.  Best,  Justice,  said 
that  ^Mie,  for  one,  would  never  compel  a  clergyman  to  disclose 
communications  made  to  him  by  a  prisoner,  but  that  if  he  chose 
to  disclose  them  in  evidence  he  would  not  restrain  him  from  so 
doing."  In  Scotland  confessions  made  to  a  clergyman  or  minister 
of  the  Gospel  in  order  to  obtain  spiritual  advice  and  comfort  are 
not  required  to  be  given  in  evidence.  But  such  exclusion  does 
not  include  communications  made  to  a  minister  in  the  ordinary 
course  of  his  duty.  The  common  law  encourages  the  penitent 
to  confess  and  unburden  his  conscience  so  that  he  may  receive 
consolation.  Yet  the  clergyman,  minister,  or  priest,  to  whom 
such  confession  is  made,  is  compelled  to  testify  to  such  confessions. 
By  the  common  law  there  is  no  distinction  between  ministers  and 
other  persons.  All  confessions  not  imparted  to  attorneys  and 
counselors  at  law,  or  to  some  of  the  classes  previously  enumer- 
ated, are  required  to  be  disclosed ;  but,  as  we  have  before  sug- 
gested, in  ecclesiastical  trials  the  rules  of  exclusion  should  be  the 
same  in  favor  of  ministers  of  the  Gospel  as  they  are  in  favor  of 
solicitors,  attorneys,  and  counselors  at  law. 

The  same  exemption  and  protection  has  been  claimed  for 
members  of  the  medical  profession  in  regard  to  information  ac- 
quired in  their  professional  character  and  communicated  to  them 
in  such  professional  character  confidentially ;  this  is  secured  to 
them  by  statute  in  some  of  the  States.  ^     It  is  true  that,  owing  to 

^  1  Greeuleaf  s  Ev.,  Sec.  447. 

^  The  testimony  of  Smith,  the  physician,  as  to  what  he  discovered  and  was  in- 
formed of  when  he  was  consulted  by  the  defendant  professionally  in  1830,  was 
illegal  and  improper,  and  ought  not  to  have  been  received.  By  the  revised 
statutes  a  physician  is  not  only  excused,  but  prohibited,  as  a  witness,  from  dis- 
closing information  which  he  has  acquired  in  attending  a  patient  in  a  profes- 
sional character,  and  which  information  was  necessary  to  enable  hira  to  prescribe 
for  such  patient.  (2  R.  S.  406.)  From  the  testimony  as  reported  by  the  Mas- 
ter, I  infer  that  Dr.  Smith  at  first  declined  answering  as  to  what  he  had  thus 


146  ECCLESIASTICAL  LAW. 


their  professional  relation,  they  usually  exert  a  greater  or  less 
degree  of  influence,  and  in  order  to  make  a  confession  voluntary 
they  should  be  freely  made  by  a  person  charged  with  an  offense. 
The  law,  however,  does  not  undertake  to  determine.  This  rela- 
tionship destroys  that  freedom  of  will  which  is  essential  to  the 
admissibility  of  confessions  as  evidence.  Hasty  confessions  may 
be  easily  extorted  by  threats  or  promises  from  a  person  accused 
of  a  crime  when  in  a  state  of  agitation  and  alarm,  and  therefore 
all  such  confessions  are  excluded  upon  another  principle.  Even 
the  slightest  influence,  say  the  books,  is  sufficient  to  exclude 
them,  and  in  determining  whether  the  party  is  influenced  by  the 
emotion  of  hope  or  fear,  the  court  or  presiding  officer  may  take 
into  consideration  the  relation  existing  between  the  accused  and 
the  person  or  persons  to  whom  the  confession  is  made.  By  the 
revised  statutes  of  New  York^  it  is  provided  that  ''no  person 
duly  authorized  to  practice  physic  or  surgery  shall  be  allowed  to 
disclose  any  information  which  he  may  have  acquired  in  a  pro- 
fessional character  and  which  information  was  necessary  to 
enable  him  to  prescribe  for  such  patient  as  a  physician,  or  to  do 
any  act  for  him  as  a  surgeon."  Statutes  to  the  same  eff'ect  have 
been  enacted  in  Michigan,  Wisconsin,  Iowa,  and  Missouri,  The 
question  has  been  sometimes  considered  in  those  States  where 
the  statutes  are  express,  as  to  whether  the  party  himself  may 
waive  the  privilege  or  not,  and  it  has  been  held,  not  only  as  it 
regards  the  relation  of  physician  and  patient,  but  as  it  regards 
the  minister  and  member,  or  attorney  and  client,  that  the  priv- 
ilege is  the  privilege  of  the  party  and  not  of  the  physician,  min- 
ister, or  attorney,  and  that  the  party  may  waive  it;  but  the  physi- 
cian, minister,  or  attorney  can  not  do  so  without  the  consent  of 

discovered  when  consulted  in  his  capacity  of  physician;  but  on  being  told  by 
the  Master  that  he  was  obliged  to  make  the  disclosure,  he  submitted  to  what  he 
supposed  to  be  a  legal  duty.  Indeed,  it  is  expressly  stated  in  the  brief  of  the 
complainant's  counsel  which  was  handed  up  to  the  court  in  this  case,  that  the 
physician  declined  making  any  disclosure  as  to  the  disease  under  which  the  de- 
fendant was  laboring  until  he  was  compelled  by  the  Master  to  answer.  The 
Master  mistook  the  law  on  this  subject;  and  the  testimony  being  thus  obtained 
in  direct  violation  of  this  statutory  provision,  it  should  be  rejected  or  laid  entirely 
out  of  consideration  in  deciding  whether  the  adultery  charged  in  the  complain- 
ant's bill  is  eRtal)lished  by  the  proofs.  Johnson  v.  Johnson,  4  Paige,  468. 
*  Revised  Statute,  400,  sec.  "73, 


EXCLUSION  OF  EVIDENCE.  147 

the  person  whose  confessions  are  sought  to  be  used  in  evidence 
against  him. 

There  is  still  another  class  of  privileged  communications : 
such  as  are  made  to  judges  and  arbitrators.  It  is  considered 
dangerous  to  allow  judges  or  arbitrators  to  state  w^hat  occurred 
before  them.  On  this  ground  the  grand  jury  were  advised  not 
to  examine  the  chairman  of  a  quarter  session  as  to  what  a  person 
testified  on  a  trial  in  that  court ;  and  it  is  deemed  impolitic  to 
call  upon  arbitrators,  or  a  jury,  or  a  Church  committee,  to  dis- 
close the  ground  of  their  award  or  verdict. 

The  declarations  or  admissions  of  jurors,  arbitrators,  judges, 
or  committeemen,  made  subsequent  to  the  rendition  of  their  ver- 
dict, award,  or  finding,  are  not  admissible  in  support  of  a  motion 
to  set  aside ;  neither  will  the  afiidavit  of  a  juror  or  arbitrator  be 
received  to  impeach  the  verdict  or  award  for  mistake  or  error  in 
respect  to  the  merits,  or  to  prove  irregularities  or  misconduct 
either  on  his  own  part  or  that  of  his  fellows.  But  affidavits  of 
jurors  or  arbitrators  may  be  received  to  support  such  verdict 
or  award.  ^ 

There  are  some  other  grounds,  founded  upon  public  policy, 
upon  which  the  testimony  of  certain  witnesses  is  excluded, 
where  their  previous  acts  are  inconsistent  and  irreconcilable 
with  the  facts  they  are  called  upon  to  prove.  Thus,  it  has  been 
held  that  Avhere  a  party  to  a  negotiable  instrument  has  given  it 
credit  and  currency  by  his  signature,  that  afterwards  he  shall 
not  be  permitted,  in  a  suit  between  other  parties,  to  prove  that 
the  negotiable  instrument  was  originally  invalid.  Justice  M'Lean, 
in  speaking  of  incompetency  upon  this  ground,  said:  ''It  is  a 
well  settled  principle  that  no  man  who  is  a  party  to  a  negotiable 
note  shall  be  permitted,  by  his  own  testimony,  to  invalidate  it." 
Having  given  it  the  sanction  of  his  name,  and  thereby  added  to 
the  value  of  the  instrument  by  giving  it  currency,  he  shall  not 
be  permitted  to  testify  that  the  note  was  given  for  a  gambling 
consideration  or  under  any  other  circumstances  which  would  de- 
stroy its  validity.^     Thus  the  first  indorser  of  a  promissory  note 

^  Smith  V.  Chatham,  3  Kane's  R.  57;  Dana  v.  Tucker,  4  John.  487;  Owen 
V.  Warburton,  4  Bross  &  Pull,  32G  ;  Vaise  v.  Dlaval,  1  Tenn.  R.  11. 

2  Bank  of  the  United  States  v.  Dunn,  10  Curtis's  Dec.  21;  Walton  ei  al. 
Assignee  of  Sutton  v.  Shelly,  1  Tenn.  R.  296. 


148 


ECCLESIASTICAL  LAW. 


Wcas  not  permitted  to  prove  that  there  was  a  secret  understanding 
between  himself  and  the  assignee  that  he  should  not  be  held 
responsible  for  the  payment  of  the  note.  Such  evidence  would, 
if  admitted,  seriously  affect  the  credit  of  this  description  of  paper, 
and  it  raightj  in  many  cases,  operate  as  a  fraud  upon  subsequent 
indorsers.  An  apparent  exception  to  the  rule,  however,  obtains 
in  case  of  defense  predicated  upon  usui-y,  gambling,  etc.,  for  it 
has  been  held  that,  notwithstanding  the  testimony  tends  to  de- 
stroy the  value  of  the  paper,  the  borrower  of  the  money  is  a 
competent  witness  to  prove  the  whole  case.^  The  reason  of  the 
exclusion,  as  given  by  Lord  Ellenborough  in  the  case  of  Waltofi 
V.  ShdJey  Uhi,  ''is  not  that  tlie  witness  is  interested,  or  that  he 
is  one  of  the  parties  upon  the  record,  but  that  he  is  inadmissible 
on  the  grounds  of  public  interest  and  the  public  convenience  ;  to 
admit  his  evidence  would  open  a  door  to  fraud." ^  A  rule 
established  by  some  of  the  courts  excludes  the  witness  only 
when  the  paper  is  negotiable  and  put  into  circulation  before  its 
maturity.'  The  indorser  of  a  negotiable  note,  while  he  is  incom- 
petent to  testify  to  facts  that  tend  to  render  the  note  void  in  its  in- 
ception, may  be  admitted  as  a  witness  to  prove  facts  subsequent 
to  the  indorsement,  and  which  destroy  the  title  of  the  holder.' 
Declarations  and  admissions  of  a  party,  when  made  with  a 
view  to  compromising  matters  in  litigation  or  dispute,  are,  under 
certain  qualifications,  held  to  be  inadmissible  in  evidence.  For 
instance,  if  one  of  the  parties  offers  to  pay  to  the  other  a  sum  of 
money  with  a  view  to  a  compromise  of  the  matter  in  controversy, 
such  offer  is  not  admissible  in  evidence,  for  it  must  be  permitted 
to  men  to  endeavor  to  buy  their  peace  without  being  prejudiced 


1  1  Tenn.  R.  56.  -  Eohrcr  v.  Morning  Star,  18  Ohio,  587. 

3  Treon  v.  Broivn  cfr  FuUcr,  14  Ohio,  483. 

*  Woodhnll  V.  Holmes,  10  John.  230;  Webb  v.  Danforih,  1  Day,  301 ;  Bar- 
ber  V.  Arnold,  1  Kane's  R.  258.  It  is,  however,  objected  to  this  deposition  that 
Mie  witness  is  incompetent  from  interest.  It  is  a  sufficient  answer  to  this  objec- 
tion that  the  interest  of  the  witness  is  against  the  party  who  calls  him.  It  is 
objected  again  that  a  party  to  negotiable  paper  can  not  be  called  to  impeach 
its  validity.  In  the  case  of  Woodhnll  v.  Holmes,  before  cited,  the  Court  say 
"  that  the  indorser  of  a  negotiable  note  may  be  called  as  a  witness  to  prove 
facts  subsequent  to  the  indorsement  and  which  destroy  the  title  of  the  holder. 
The  Court  recognize  this  principle  as  the  settled  law  on  the  subject."  The 
deposition  for  these  purposes,  therefore,  is  properly  received.  Stone  v.  Vance  et 
al,  6  Ohio,  249. 


EXCLUSION  OF  EVIDENCE.  149 

by  a  rejection  of  their  offers.  Hence  evidence  of  such  offers  or 
proposals  is  irrelevant,  and  are  not  to  be  taken  as  admissions  of 
the  legal  liability  of  the  party  making  them.  A  distinction, 
however,  exists  between  the  cases  of  an  offer  to  pay  money  to 
settle  a  controversy  and  an  admission  of  particular  facts  con- 
nected with  the  case  made  by  a  party  pending  a  negotiation  for 
compromise.  The  more  convenient  rule  might  be  that  which  is 
applicable  to  communications  between  client  and  attorney,  ex- 
cluding as  testimony  every  thing  connected  with  the  relation  ; 
which  rule,  if  applied,  would  exclude  every  admission  made 
during  negotiation  for  such  compromise — made  with  a  view  to 
the  compromise.  To  some  extent  it  has  been  attempted  to  intro 
duce  the  rule  excluding  all  admissions  of  the  parties — even  ad- 
missions of  particular  facts — where  it  appeared  that  they  were 
expi'essly  stated  at  the  time  for  the  purpose  and  with  a  view  to 
compromise.  The  admission,  without  exception,  of  collateral 
facts,  is  now  firmly  sanctioned  by  authority,  and  the  evidence 
of  the  admission  by  a  party,  though  made  under  a  treaty  of 
compromise.  ^ 

^  The  rule  undoubtedly  is,  that  an  offer  to  pay  any  sum  by  way  of  a  pending 
controversy  is  not  to  be  given  in  evidence  against  the  party  making  it.  This 
rule  is  founded  on  policy,  that  there  may  be  no  discouragement  to  amicable  ad- 
justment of  disputes  by  a  fear  that  if  not  completed  the  party  amicably  disposed 
may  be  injured.  But  this  rule  seems  confined  to  the  mere  ofier  of  compromise, 
for  it  is  held  that  any  independent  facts  admitted  during  the  treaty  for  a  com- 
promise may  be  given  in  evidence  as  confessions.  This  limitation  or  exception 
to  the  rule  is  laid  down  in  Starkie  and  Phillips,  and  was  adopted  by  this  court 
in  the  case  of  Marsh  v.  Gold^  2  Pick.  285;    Gerrish  v.  Siceeiser,  4  Pick.  377. 

That  no  advantage  shall  be  taken  of  offers  made  by  way  of  compromise, 
that  a  party  may,  with  impunity,  attempt  to  buy  his  peace,  are  well  established 
rules  of  law,  to  which  our  reason  and  our  feelings  at  once  assent.  But  I  am 
not  prepared  to  admit  that  what  a  party  may  state  as  a  fact,  though  the  state- 
ment may  be  made  in  the  course  of  a  negotiation  for  a  compromise,  or  may  be 
connected  with  an  offer  to  purchase  peace,  will  not  be  as  binding  as  if  the  fact 
had  been  disclosed  in  any  other  way.  If  a  man  says  to  me,  I  do  not  admit  that 
I  owe  you  any  thing,  but  rather  than  be  sued  I  will  give  you  a  hundred  dollars, 
it  would  be  most  unjust  to  suffer  me  to  avail  myself  of  this  offer  to  recover 
against  him.  But  if  one  tells  me,  It  is  true  I  justly  owe  you  a  hundred  dollars, 
and  will  give  you  fifty  if  you  will  give  up  your  debt,  I  apprehend  there  is  no  rule 
of  law  so  absurd  and  unjust  as  to  prevent  my  availing  myself  of  my  debtor's 
confession  because  he  connected  with  it  an  offer  of  compromise.  Mwray  v. 
Coster,  4  Cowen,  6.S5;  Greenl.  Ev.  sec.  192;  Fuller  v.  Hampton,  5  Conn.  416  ; 
Sandborn  v.  Meilson.,  14  N.  H.  501. 

11 


150 


ECCLESIASTICAL  LAW, 


CHAPTER  VII. 


MATTERS    OF    PUBLIC    INTEREST. 


These  may  be  classed  under  four  general  heads ;  first,  dec- 
larations made  against  the  interest  of  the  party  making  them ; 
second,  dying  declarations ;  third,  declarations  relating  to  ancient 
possessions ;  fourth,  declarations  relating  to  matters  of  public 
interest.  Declarations  and  entries  made  by  a  person  since  de- 
ceased, and  against  the  interest  of  the  party  making  the  same, 
have  been  received  as  original  and  primary  evidence.  Entries 
by  third  persons  are  properly  divisible  into  two  classes,  those 
that  are  made  in  discharge  of  official  duty  or  in  the  course  of 
professional  employment,  and  those  that  are  made  as  a  matter 
of  mere  private  enterprise.  In  order  to  render  the  former  class 
admissible  the  act  must  be  one  that  was  the  person's  duty  to  per- 
form, or  which  belonged  to  the  transaction,  and  was  part  of  the 
res  gestcs,  or  that  was  its  usual  and  proper  accompaniment.  If 
the  act  or  tlie  entry  does  not  fall  within  the  discharge  of  official 
duty,  or  professional  employment,  but  has  reference  to  extra- 
neous matters,  it  is  not  admissible.  In  order  to  render  the  en- 
tries made  by  third  persons  competent  and  admissible  in  evi- 
dence the  party  making  them  must  have  proper  knowledge  of 
the  fact,  and  there  must  have  been  no  particular  motive  operat- 
ing on  the  mind  of  the  party  to  enter  the  transaction  falsely,  and 
the  entry  must  be  made  at  the  time  of  the  transaction.  When 
offered  in  evidence  it  carries  with  it  the  whole  statement,  pro- 
vided it  does  not  go  beyond  those  matters  which  it  was  his  duty 
to  enter. ^  Where  the  entry  is  one  of  a  number  of  facts,  which 
are  usually  connected  the  proof  of  the  one  affords  a  presumption 
that   the   others   have   taken  place,   and  a  fair   entry,  ~   such  as 


'  Percival  v.  Nanson,  Y  Eng.  Law  and  Eq.  R.  538. 

^  This  brings  us  to  tlie  inquiry  whether  tlie  original  entries  and  memoranda 
were  properly  received  in  evidence.  The  defendants  insist  that  they  could  only 
ije  used  for  the  purpose  of  refreshing  the  recollection  of  the  witness,  and  not  as 
evidence  to  the  jury.  I  may  here  remark  that  the  entries  and  memoranda  were 
made  in  the  usual  course  of  business,  and  are  verified  in  the  most  am]ile  man- 
ner by  the  witness,  who  made  and  whose  duty  it  was  to  make  them.     The  proof 


MATTERS  OF  PUBLIC  INTEREST  151 

usually  accompany  similar  facts,  and  apparently  contempora- 
neous with  them,  is  received  as  original  evidence  of  those  facts. 
Tiie  entry  being  primary  evidence  as  regards  its  admissibility,  it 
is  a  matter  of  no  moment  whether  the  person  making  it  be  living 
or  dead.  The  rule,  however,  is  otherwise  where  the  entry  is 
only  secondary  evidence,  and  only  admissible  in  consequence  of 
the  death  of  the  person  making  it.  In  order  to  render  them  ad- 
missible, the  party  offering  such  evidence  must  establish  the  fact 
that  the  declarant  is  dead ;  that  he  possessed  or  was  in  a  posi- 
tion to  possess  competent  knowledge  of  the  facts ;  and  that  his 
entries  or  declarations  were  at  variance  with  his  interest.  Thus, 
if  a  person  have  a  peculiar  means  of  knowing  a  fact,  and  makes 
a  declaration  or  written  entry  of  that  fact,  which  is  against  his 
interest  at  the  time,  if  he  could  have  been  examined  to  it  in  his 
life-time,  it  is  evidence  of  the  fact  as  betAveen  third  persons 
after  his  death ;  and,  therefore,  an  entry  made  by  a  physician  in 
a  book  of  having  delivered  a  woman  of  a  child  on  a  particular 
day,  referring  to  his  ledger  in  which  he  has  made  a  charge  for 
his  attendance,  which  was  marked  as  paid,  is  evidence  upon  an 
issue  as  to  the  age  of  such  child  at  the  time  of  suffering  a  recov- 
ery. Le  Blanc,  Justice,  in  delivering  the  opinion  of  the  Court, 
said:  "On  inquiring  into  the  truth  of  facts  which  happened  a 
long  time  ago,  the  Courts  have  varied  from  the  strict  rules  of 


could  not  well  have  been  more  satisfactory  than  it  is.  But  the  witness  was 
unable  to  call  to  mind  the  original  transaction,  and  the  question  is  whether 
memoranda  and  entries  thus  verified  should  be  allowed  to  speak  for  themselves. 
I  think  they  should.  Although  it  is  not  then  absolutely  necessary  to  pass  upon 
the  question  it  was  fully  considered  in  Merrill  v.  Owego  E.  R.  Co.  16  Wend.  586, 
and  we  came  to  the  conclusion  that  evidence  of  this  character  was  admissible. 
Laiorence  v.  Barker^  5  Wend.  301,  does  not  lay  down  a  different  rule.  The 
memorandum,  in  that  case,  was  not  made  in  the  usual  course  of  business,  and 
as  a  part  of  the  proper  employment  of  the  witness.  I  do  not  see  how  it  is  pos- 
sible to  doubt  that  such  evidence  ought  to  be  received.  There  are  a  multitude 
of  transactions  occurring  every  day  in  banks,  the  offices  of  insurance  compa- 
nies, merchants'  stores,  and  other  places  which  after  the  lapse  of  a  very  brief 
period  can  not  be  proved  in  any  other  way.  It  is  not  to  be  supposed  that 
officers  and  clerks  in  large  trading  and  other  business  establishments  can  call 
to  mind  all  that  has  been  done  in  the  course  of  their  employment,  and  when 
their  original  entries  and  memoranda  have  been  duly  authenticated,  and  there 
is  nothing  to  excite  suspicion,  there  can  be  no  great  danger  in  allowing  them 
to  be  laid  before  the  jury.     Ba7ik  of  Monroe  v.  Culver,  2  Hill,  535. 


152  ECCLESIASTICAL  LAW. 


evidence  applicable  to  facts  of  the  same  description  happening  in 
modern  times,  because  of  the  difficulty  or  impossibility,  by  lapse 
of  time,  of  proving  those  facts  in  the  ordinary  way,  by  living 
witnesses."  On  this  ground  hearsay  and  reputation,  which  is  no 
other  than  the  hearsay  of  those  who  may  be  supposed  to  have 
been  acquainted  Avith  the  facts  handed  down  from  one  to  another, 
iiave  been  admitted  as  evidence  in  particular  cases.  On  that 
principle  stands  the  evidence  in  cases  of  pedigree,  of  declarations 
of  the  family,  or  of  members  thereof  who. are  dead,  or  of  monu- 
mental inscriptions,  or  of  entries  made  by  them  in  family  Bibles. 
The  like  evidence  has  been  admitted  in  other  cases,  where  the 
Court  was  satislied  that  the  person  whose  entry  was  offered  in 
evidence,  had  no  interest  in  falsifying  the  fact;  but,  on  the  con- 
trary, had  an  interest  against  his  declaration  or  written  entry. ^ 
The  principle  upon  which  evidence  of  this  character  is  re- 
ceivable is  the  improbability,  owing  to  the  interest  of  the  party 
being  adverse,  to  the  making  of  it  falsely.  The  law  deems  the 
regard  which  men  ordinarily  have  for  their  own  interest  a  suffi- 
cient guarantee  that  the  declarant  had  the  requisite  knowledge 
of  the  facts,  and  that  his  declarations  made  with  reference  to 
them  are  true.  Apprehensions  of  imposition  or  fraud  being  prac- 
ticed in  the  making  of  the  declarations  or  entries  are  rendered 
still  more  improbable  from  the  fact  that  they  are  not  ordinarily 
receivable  as  evidence  during  the  life-time  of  the  declarant.  It  is 
always  permissible  for  the  party  against  whom  such  declarations 
are  produced  to  point  out  any  sinister  motive  for  the  making 
of  such  declarations  or  entries.  It  is  true,  when  the  proper 
ancillary  proof  has  been  made  by  the  party  offering  such  entry 
or  declaration,  that   sinister  motives  would  not  have  the   effect 

^  Higham  v.  Ridgway^  10  East  120. 
Lord  Ellcnboroiigh,  C.  J.  The  ground  upon  which  this  evidence  has  been 
received  is,  that  there  is  a  total  absence  of  interest  in  the  pei'sons  making  the 
entries  to  pervert  the  fact,  and,  at  the  same  time,  a  competency  in  them  to  know 
it.  The  impression  on  my  mind  is  the  same  now  as  it  was  at  the  trial,  that 
the  evidence  is  admissible  on  tlie  authority  of  the  cases.  It  has  long  been  an 
established  principle  of  evidence,  that  if  a  party  who  has  knowledge  of  the  fact 
make  an  entry  of  it,  whereby  he  charges  himself  or  discharges  another  upon 
whom  he  would  otherwise  have  a  claim,  such  entry  is  admissible  in  evidence  of 
tlie  fact  because  it  is  against  iiis  own  interest.  Doe,  Lessee  of  lieece  v.  Jiobson, 
15  East,  33. 


MATTERS  OF  PUBLIC  INTEREST.  153 

to  exclude  them  as  evidence,  but  would  materially  lessen,  if  not 
entirely  destroy  their  weight.  The  interest  with  which  the  dec- 
larations are  offered  in  evidence  is  required  to  be  at  variance 
with  the  party  making  such  declarations  ;  and  such  variance  must 
be  of  a  pecuniary  nature.'  The  mere  apprehension  of  possible 
danger  of  prosecution  for  crime  is  not  sufficient  to  form  a  basis 
for  their  exclusion.^ 

It  has  sometimes  been  contended  that  it  is  not  material  that 
the  declarant  should  have  an  actual  interest  contrary  to  his 
declarations ;  but  this  position  has  not  received  the  sanction  of 
the  courts.  Lord  Eldon^  said:  "The  cases  satisfy  me  that  the 
evidence  is  admissible  of  declarations  made  by  persons  possessed 
of  competent  knowledge  of  the  subject  to  which  such  declarations 
refer,  where  their  intei-est  is  concerned,  and  the  only  doubt  I 
have  entertained  was  as  to  the  position  that  you  were  to  receive 
evidence  of  declarations  where  there  is  no  interest.  Where  the 
evidence  consists  of  entries  in  books  of  account,  they  are  admis- 
sible as  a  part  of  the  res  gesice,  where  it  is  shown  that  they  are 
made  in  the  ordinary  course  of  business  or  duty ;  such  evidence 
is  not  regarded  as  secondary,  but  as  primary  evidence,  and  there 
is  no  difference  in  the  principle  of  admissibility  between  a  writ- 
ten entry  and  an  oral  declaration  where  they  constitute  part  of 
the  res  gestce.  Thus  the  declaration  of  an  agent  concerning  his 
having  received  money  from  his  principal,  is  admissible  where  it 
is  made  at  the  time  of  receiving  the  money.  The  admissions  or 
declarations  of  an  agent  relative  to  the  settlement  of  an  account 
made  seventeen  months  after  the  pretended  settlement,  when 
there  is  no  proof  of  a  settlement  in  fact,  are  not  admissible  in 
evidence  against  his  principal.  The  acts  and  declarations  of  the 
agent  at  the  time  of  the  transaction  are  binding  upon  the  princi 
pal,  but  what  he  says  at  another  and  subsequent  period  is  not 
evidence  against  the  principal.  His  declarations  are  received 
not  as  admissions,  but  as  part  of  the  res  gestce.^^* 


^  Davis  V.  Lloyd,  I  Car.  &  Payne,  276. 

2  The  Sussex  Peeracfe  Case,  11  Clark  &  Finn.  85. 

'  Barker  v.  Rai/,  2  Russ.  63. 

■*  Marct,  J. — The  decision  of  the  court  in  6  Cowen,  90,  where  this  cause  is 
reported,  on  a  motion  for  new  trial  on  the  part  of  the  defendant  (a  verdict  then 
having  been  found  for  plaintiff),  disposes  of  most  of  the  questions  presented 


154  ECCLESIASTICAL  LAW. 


But  in  regard  to  declarations  in  general,  they  not  being  en- 
tries or  acts  of  the  character  just  referred  to,  are  admissible  on 
the  ground  of  having  been  made  against  tlie  interest  of  the 
declarant.  Before,  however,  such  declarations  are  receivable  in 
evidence,  the  adverse  interest  of  the  declarant  should  be  made  to 
appear,  either  from  evidence  aliunde  or  from  the  nature  of  the 
transaction  ;  and  it  is  not  deemed  sufficient  that  in  one  or  more 
points  of  view  a  declaration  may  be  against  interest  if  it  appears, 
upon  the  whole,  that  the  interest  of  the  declarant  would  be  ratlier 
promoted  than  impaired  by  such  declaration.  Thus,  in  an  action 
of  trespass  for  breaking  and  entering  a  particular  close,  it  became 
material  to  identify  the  close  as  being  parcel  of  an  estate  out  of 

by  the  case  now  brought  before  us.  There  is  one  question,  however,  arising  on 
the  present  case  which  was  not  then  under  consideration.  It  is  contended  that 
improper  evidence  was  adnjitted  to  establish  the  settlement  between  the  defend- 
ant and  Henry  R.  Teller.  The  defendant  attempted  to  show,  and  I  think  did 
sliow  sufficiently,  that  Teller  was  the  plaintiff's  agent  in  relation  to  the  business 
out  of  which  the  claim  embraced  in  this  suit  arose.  The  defense  on  the  trial 
was,  that  the  defendant  had,  in  good  faith,  paid  over  the  money  that  the  j)laintifF 
had  a  right  to  receive  on  the  compromise  of  the  ejectment  suits  to  Teller,  the 
plaintiff's  agent,  and  that  the  whole  matter  had  been  fully  settled  with  him  as 
such  agent.  To  make  out  this  defense,  the  defendant  was  permitted  to  intro- 
duce an  account  current  between  him  and  Teller,  the  last  entry  on  the  debit  side 
of  which  was  in  November,  1816.  There  was  no  evidence  that  this  account  was 
made  out  on  a  settlement  between  the  parties  to  it,  or  that  it  ever  had  the  sanc- 
tion of  Teller  before  the  time  when  he  made  an  affidavit  in  March,  1818,  which 
was  also  received  in  evidence  in  behalf  of  the  defendant.  In  this  affidavit 
Teller  says  that  the  allegations  and  matters  in  a  certain  answer  put  into  a  bill  in 
Chancery  by  the  defendant  are  true.  The  answer  contained  the  allegation  of  the 
settlement  which  the  defendant  attempted  to  prove,  and  the  defendant  was  per- 
mitted to  read,  in  evidence,  a  part  of  the  answer  which  was  explanatory  of  the 
account.  It  appears  to  me  that  the  judge  erred  in  receiving  this  evidence.  His 
decision  proceeded  on  the  ground  that  Teller  was  the  agent  of  the  plaintiff,  and 
that  his  acts  and  admissions  in  relation  to  the  matters  within  the  scope  of  his 
agency  might  be  proved  against  his  principal.  The  agent's  acts  are  the  acts  of 
the  principal,  and  may  be  proved  in  the  same  manner  as  the  party's  own  acts. 
It  is  to  be  observed,  however,  that  the  specific  act  of  a  settlement  of  the  plain- 
tiff's claim  in  this  case  was  not  attempted  to  be  proved.  As  I  have  before  ob- 
served, there  wa.s  no  proof  that  the  account  current  had  ever  been  seen  by 
Teller  before  the  date  of  the  affidavit. 

Was  the  affidavit  admissible  in  evidence?  The  plaintilf  was  an  entire 
stranger  to  the  Chancery  suit  in  which  it  was  used;  he  could  not,  therefore,  be 
concluded  or  affected  by  the  proceeding  or  proof  in  that  suit.  If,  upon  any 
principle,  the  affidavit  could  be  received,  it  must  be  as  the  admission  of  an  agent. 


MATTERS  OF  PUBLIC  INTEREST.  155 

vvhicli  certain  ancient  rents  liad  been  reserved  in  an  ancient 
conveyance.  The  party  who  sought  to  do  this  produced  the 
books  of  a  person  under  whom  he  derived  title  to  those  ancient 
rents,  in  which  that  person  acknowledged  the  receipt  of  rents 
from  the  person  Avho  had  conveyed  the  close  to  plaintiff,  which 
rent  corresponded  with  the  rent  which  had  been  anciently  re- 
served. This  evidence  was  held  to  be  inadmissible  by  the  courts 
of  the  King's  Bench  (even  supposing,  according  to  the  author- 
ities, that  there  was  reasonable  probability  of  the  entry  being 
used  against  the  maker  for  the  purpose  of  proving  the  payment), 
still  it  could  be  used  by  the  representative  of  the  maker  to  prove 
title  to  the  land.  The  entry  might,  upon  the  whole,  be  in  favor 
of  the  maker's  interest.' 

The  general  rule  on  this  subject  is,  that  what  an  agent  does  or  says  within  the 
scope  of  his  authority,  is  binding  upon  the  principal.  Not  only  the  agreement 
that  he  makes,  but  all  his  declarations  affecting  or  qualifying  such  agreement, 
are  binding  on  the  principal ;  but  what  an  agent  says  at  another  time,  or  of  his 
own  authority,  is  not  evidence  against  the  principal.  (Starkie  on  Ev.  4  pt.  42-3.) 
In  making  the  settlement  with  the  defendant — if  one  was  ever  made — Teller 
might  be  considered  the  agent  of  the  plaintiff,  and  all  that  he  did  or  said  on  that 
occasion  might  properly  be  received  in  evidence ;  but  what  he  said  at  another 
time,  though  it  related  to  the  same  transaction,  was  not  admissible  testimony. 
It  will  be  recollected  that  the  affidavit  was  not  made  until  near  seventeen  months 
after  the  last  item  in  the  account  current. 

In  the  case  of  Bentham  v.  Benson  (Gow's  N.  P.  Eop.  45),  Chief- Justice 
Dallas  says:  "It  is  not  true  that  where  an  agency  is  established  the  declarations 
of  an  agent  are  admitted  in  evidence  merely  because  they  are  his  declarations. 
They  are  only  evidence  when  they  form  a  part  of  the  contract  entered  into  by 
the  agent  on  the  behalf  of  his  principal,  and  in  that  case  they  become  admissi- 
ble." To  this  effect  is  the  law  laid  down  in  the  case  of  Fail-lie  v.  Hastings 
(10  Vesey,  12!>).  Where  a  party  is  bound  by  the  act  of  his  agent,  and  the 
declarations  of  the  agent  qualify  or  affect  that  act,  these  declarations  may  be 
proved  against  the  principal;  but  they  are  not  proved  as  admissions  or  declara- 
tions merely,  but  as  part  of  the  res  gestoi.  The  act  and  the  words  together 
make  the  whole  thing  to  be  proved.  The  fact  to  be  established  in  this  case  was 
the  settlement  by  the  agent  of  the  plaintiff  with  the  defendant,  or  the  payment 
to  the  agent  of  all  the  moneys  received  on  account  of  the  plaintiff.  What  was 
done  and  said  at  the  settlement,  or  when  the  moneys  were  actually  paid  over, 
might  well  be  proved,  but  not  Teller's  representation  of  it,  even  if  it  had  been 
made  in  an  hour  after  the  business  was  closed.  The  length  of  time  between  the 
adjustment  of  accounts  and  the  making  of  the  afiBdavit  seems  to  me  to  take 
awa}'  all  plausibility  for  admitting  it  as  proper  evidence  in  this  cause. —  Thail- 
heimer  v.  BrinckerhoJf\  4  Wendell,  ;?94,  ei  seq. 

15  Tenn   R.  121;   1  PhiHips's  Ev.  306. 


156  ECCLESIASTICAL  LAW. 

Entries  of  receipts  of  rent  made  by  a  deceased  executor  who 
had  an  interest  in  the  land  which  was  cLaimed  has  been  held  ad- 
missible evidence  for  a  person  claiming  the  land  under  him,  where 
the  rents  have  been  received  by  the  deceased  in  his  capacity  of 
executor,  the  entries  not  having  been  made  by  liim  in  his  charac- 
ter of  landlord.^  It  frequently  happens  that  an  entry  purports, 
in  the  first  place,  to  charge  a  person,  and  afterwards  to  discharge 
him.  In  such  a  case  the  entry  can  not  be  used  against  the 
maker  of  it  unless  the  whole  is  read  in  evidence.  There  is  a 
remarkable  class  of  cases,  according  to  which  entries  made  by  a 
deceased  person  of  the  receipts  of  ecclesiastical  dues  have  been 
received  in  favor  of  the  parties  claiming  the  same  interest  which 
the  maker  of  the  receipts  had ;  thus  the  books  of  a  deceased 
vicar  or  rector  have  been  frequently  admitted  as  evidence  against 
his  successor.^  And  it  has  been  determined  that  evidence  might 
be  admitted  of  receipts  of  payment  entered  in  private  books  by 
persons  not  obliged  to  keep  such  books,  nor  to  account  to  any  one 
for  tlie  sums  received.  It  does  not  seem  to  have  been  contrary 
to  principle  to  admit  evidence  of  rectors'  and  vicars'  books,  for 
the  entries  can  not  be  used  by  the  parsons  themselves,  and  there 
is  no  legal  privity  between  them  and  their  successors.^ 

The  rule  that  we  have  been  considering  extends  to  admissions 
made  by  the  owner  of  property,  provided  that  the  admissions 
emanated  from  such  owner  at  the  time  he  owned  the  property, 
and  would,  therefore,  have  been  evidence  against  him  were  he  the 
immediate  party  to  the  suit  or  proceeding.  His  estate  or  interest 
in  the  same  property  afterAvards  coming  to  another  by  descent, 
devise,  right  of  representation,  sale,  or  assignment — in  a  word, 
by  any  kind  of  transfer,  whether  it  be  by  the  act  of  the  law  or 
the  act  of  the  parties,  whether  the  subject  of  the  transfer  be  real 
or  personal  estate,  corporeal  or  incorporeal,  chose  in  possession 
or  chose  in  action,  where  the  successor  is  said  to  claim  under  the 
former  owner,  and  whatever  he  may  have  said  affecting  his  own 
rights  before  parting  with  his  interest — is  evidence  equally  ad- 
missible against  his  successor  claiming  from  him  either  innnedi- 
ately  or  remotely.     And,  in  this  instance,  it  makes  no  difference 

^  Spears  v.  Morris^  0  Biii<r.  <)87. 

^  Arwstrong  v.  Hewitt^  A  Pr.  216. 

'  Parson  v.  Bellanr/,  4  Pr.  11)0;  Maddison  v.  Nuttal,  G  B'mg.  22(). 


DYING  DECLARATIONS.  157 

whether  the  declarant  be  dead  or  alive.  Though  he  be  a  com- 
petent witness,  and  present  in  court,  his  admissions  are  receiv- 
able in  evidence.  This  doctrine  proceeds  upon  the  idea  that  the 
present  claimant  to  the  property  stands  in  the  place  of  the  per- 
son from  whom  his  title  is  derived.  He  takes  it  ctim  onere,  and 
as  the  predecessor  might  have  taken  a  qualified  right,  or  sold, 
charged,  restricted,  or  modified  an  absolute  right ;  and  as  he 
might  furnish  all  the  necessary  evidence  to  show  its  state  in  his 
own  hands,  the  law  will  not  allow  third  persons  to  be  deprived  of 
that  evidence  by  any  act  of  transferring  that  right  to  another. 

The  same  rule  prevails  in  its  utmost  extent  as  to  personal 
property ;  thus,  on  an  appeal  between  two  towns,  contesting  the 
settlement  of  a  negro,  it  seems  that  the  declarations  of  a  pei'son 
made  in  respect  to  his  title  to  the  negro  while  in  possession  of 
him  as  a  slave  are  receivable  in  evidence.^  On  the  same  prin- 
ciple a  will  and  inventory  of  a  negro  was  held  to  be  evidence 
that  the  testator  claimed  the  negro  as  his  slave,  and  that  he  was 
inventoried  as  such.  The  declarations  of  a  debtor,  who  con- 
tinues in  possession  of  property  after  a  sale  or  transfer  in  any 
way  by  him  to  another,  showing  fraud  in  the  transfer,  is  evi- 
dence ao-ainst  the  vendee  in  a  contest  between  him  and  his  cred- 
itors.  But  in  one  case  such  declarations  were  denied  to  be  used 
in  this  way  unless  shown  to  have  been  with  the  consent  or  per- 
mission of  the  vendee.^ 

The  declarations  of  a  person  in  possession  showing  in  what 
character  they  are  in  possession  are  receivable  as  part  of  the  res 
(jestce  itself.  Thus  the  declarations  of  a  tenant  are  constantly  re- 
ceived as  to  whom  he  holds  under,  not  as  evidence  of  title,  but 
as  evidence  of  possession,  and  to  explain  the  character  of  that 
possession.' 


CHAPTER  VIII. 

DYING   DECLARATIONS. 

The  second  head  constituting  an  exception  to  the  rule  reject- 
ing hearsay  evidence,  is  that  which  is  allowed  in  the  case  of  dy- 

^  Overseers  of  Germantnwn  v.  The  Overseers  of  Livingston,  2  Kane's  R.  106. 

^Talcott  V.  Wilcox,  9  Conn.  184. 

""Bahh.  V.  Clemson,  10  Serg.  &  Rawle,  419. 


158  FXCLESIASTICAL  LAW. 


ing  declarations.  It  was  formerly  held  that  dying  declarations 
Avere  receivable  in  evidence  in  all  cases,  civil  as  well  as  criminal; 
but  it  is  now  universally  conceded  that  they  are  not  admissible  as 
such,  except  in  cases  of  homicide,  where  the  death  of  the  de- 
ceased is  the  subject  of  investigation,  and  the  dying  declarations 
relate  to  the  circumstances  of  the  homicide.^  In  order  to  the 
.'idmission  of  dying  declarations  upon  a  trial  for  the  murder  or 
liouiicide  of  the  declarant  they  must  be  made  when  the  party 
making  them  is  in  extremis,  ^  unless  they  constitute  a  part  of  the 
res  gesics,  or  come  within  the  exception  of  declarations  made 
against  interest,^  and  the  declarant  when  he  makes  them  must 

1  Dewey,  J.,  says:  "  The  admission  in  evidence  of  the  statement  of  the  party 
injured  as  to  the  cause  and  manner  of  the  injury  which  terminated  in  her  death 
may  be  sustained  upon  the  ground  that  the  testimony  was  of  the  nature  of  the 
res  gestce.  The  witness  describes  the  situation  in  which  he  found  the  party,  her 
appearance,  and  her  request  for  assistance,  and  in  connection  therewith,  her 
declaration  of  the  cause  of  the  injury.  The  period  of  time  at  which  these  acts 
and  statements  took  place  was  so  recent  after  the  receiving  of  the  injury  as  to 
justify  the  admission  of  the  evidence  as  part  of  the  res  gestce.  In  the  admis- 
sion of  testimony  of  this  character,  much  must  be  left  to  the  e-sercise  of  the 
sound  discretion  of  the  presiding  judge.  Commonwealth  v.  John  M' Pike, 
3  Gushing,  184. 

2  It  is  error  to  admit  evidence  of  dying  declarations,  without  first  finding  that 
the  deceased  was  conscious  of  his  condition  when  making  them.  It  is  not  error 
to  allow  a  witness  to  state  the  substance  of  competent  dying  declarations, 
although  he  may  not  be  able  to  give  the  precise  words. 

Birchard,  J.  We  should  not  think  the  Court  erred  in  permitting  the  sub- 
stance of  Hackett's  statements  to  be  given  in  evidence,  although  the  witness 
was  unable  to  give  the  precise  words,  and  in  leaving  the  credit  of  the  narration, 
and  the  weight  of  the  evidence  to  the  jury,  were  there  no  other  objections.  The 
deceased  alluded  to  both  statements  at  the  time,  and  by  reaffirming  them  he 
made  them  as  much  his  dying  declarations  as  if  he  had  then  repeated  them  at 
length.  The  substantial  objection  to  the  proof  is,  that  it  was  received  without  a 
preliminary  inquiry  by  the  Court,  establishing  the  fact  that  the  deceased  not 
only  made  the  declarations  just  before  death,  and  while  in  extremis,  but  also  that 
he  was  conscious  of  his  true  condition.  It  is  this  consciousness,  coupled  with 
the  condition  of  the  party,  which  supplies  the  place  of  an  oath,  and  peculiarly 
distinguishes  dying  declarations  from  hearsay.  In  omitting  this  inquiry  a  ma- 
jority of  the  Court  believe  tliere  was  error,  and  that  for  that  cause  alone  new 
trial  should  be  awarded-  Montgoviery  v.  The  State  of  Ohio,  11  Ohio,  ^124-420. 
^  Thompson,  C.  J.,  delivered  the  opinion  of  the  Court,  assuming  that  Brown 
would  have  been  a  competent  witness  had  he  been  living,  and  admitting  that  he 
was  in  extremis  when  the  declarations  were  made,  which  were  received  in  evi- 
dence (of  which,  however,  there  is   very  great  doubt),  the  only  question  in  the 


DYING  DECLARATIONS.  159 


be  under  the  apprehension  of  death  ;  he  must  be  in  a  situation  so 
extreme  that  every  hope  of  this  world  is  gone,  every  motive  to 
falsehood  is  removed,  and  the  mind  is  induced  by  the  most  pow- 

case  is,  whether  such  declarations  were  at  all  admissible.  No  case,  whether  in 
English  courts  or  in  our  own,  has  fallen  under  my  observation,  where  such  evi- 
dence has  been  admitted  in  a  civil  suit.  Such  testimony  is  inconsistent  with 
two  fundamental  rules  in  the  law  of  evidence.  It  is  mere  hearsay  not  under 
oath,  and  no  opportunity  is  given  for  cross-examination;  and  writers  on  the  law 
of  evidence  have,  I  apprehend,  either  fallen  into  a  mistake,  or  been  a  little 
unguarded  in  laying  down  the  rule  relative  to  the  admission  of  the  dying  dec- 
laration of  a  person,  even  in  criminal  cases.  Phillips  in  his  Treatise  (p.  200), 
says:  "  Such  evidence  is  constantly  admitted  in  criminal pi-osecitiions,  and  is  not 
liable  to  the  common  objection  against  hearsay  evidence."  If  he  means  to  be 
understood  that  this  is  a  general  rule  of  evidence  in  criminal  pro,secutions, 
he  is  not  supported  by  any  adjudged  cases.  It  is,  I  apprehend,  confined  to  the 
single  case  of  homicide,  and  so  it  seems  to  be  considered  by  East  in  his  Crown 
Law,  Vol.  i,  p.  25.3:  "Besides,"  says  he,  "the  usual  evidence  of  guilt  in  gen- 
eral cases  of  felony,  there  is  one  kind  of  evidence  more  peculiar  to  the  case  of 
homicide,  which  is  the  declaration  of  the  deceased  after  the  mortal  blow  as  to 
the  fact  itself,  and  the  party  by  whom  it  was  committed."  Evidence  of  this  sort 
is  admissible  in  this  case  on  the  fullest  necessity.  For  it  often  happens  that 
there  is  no  third  person  present  to  be  an  eye-witness  to  the  fact;  and  the  usual 
witness  on  occasion  of  other  felonies,  namely,  the  party  injured,  is  got  rid  of. 
Whatever  might  have  been  the  ground  on  which  this  kind  of  evidence  was  first 
admitted  in  cases  of  homicide  we  find  it  has  long  been  an  established  rule  in 
such  cases;  and,  I  may  say,  in  such  cases  only.  For  wherever  this  rule  is  rec- 
ognized by  elementary  writers,  the  cases  referred  to  in  support  of  it  will  be 
found  to  be  those  of  homicide  only.  Stra.  499  ;  2  Leach,  569,  638  ;  12  Vin.  118; 
1  East's  C.  L.  353.  Baron  Eyre,  in  Woodcock's  case  considers  it  an  exception 
to  the  general  rule  which  requires  that  witnesses  should  be  examined  in  open 
Court  on  oath,  and  an  opportunity  afforded  for  cross-examination.  Phillips  (p. 
201),  in  treating  of  this  rule  in  criminal  proceedings,  says:  "The  same  kind  of 
evidence  is  admissible  in  civil  cases,  as  well  as  in  trials  for  murder."  But  he  is 
not  supported  by  any  of  the  cases  referred  to,  or  by  any  other  adjudged  cases 
that  I  have  found.  Wright,  ex  dem.  Clymer  v.  Littler,  3  Burr.  1244.  Wm. 
Blacks.  345,  has  been  urged  in  support  of  this  rule.  But  a  recurrence  to  the 
facts  will  show  that  the  circumstances  of  that  case  were  special  and  peculiar, 
and  the  admission  of  the  declaration  of  Medlicott  was  not  supported  under  this 
rule.  Lord  Mansfield,  in  pronouncing  the  opinion  of  the  Court,  says:  "The 
testimony  comes  out  on  the  cross-examination  of  the  defendants'  counsel,  and 
no  objection  made  to  it,"  thereby  expressly  excluding  the  idea  that  the  evidence 
was  admitted  merely  as  the  dying  declaration  of  Medlicott.  Nor  does  the  case 
of  Aveson  v.  Lord  Kimiaird,  6  East,  188,  which  has  also  been  pressed  upon  the 
Court,  in  any  measure  support  such  a  rule  of  evidence.  It  was  an  action  on  a 
policy  of  insurance  on  the  life  of  the  plaintiff's  wife,  warranted  in  good  health, 
when  the  policy  was  affected,  and  the  dying  declarations  of  the  wife  as  to  her 
state  of  health  at  that  time,  were  admitted,   but  not  as  declarations  made  in 


160  ECCLESIASTICAL  LAW. 

erful  considerations  to  speak  the  truth.  A  situation  so  awful  is 
considered  by  the  law  as  the  equivalent  of  an  oath.  Where  the 
declarant,  if  living,  would  be  incompetent  to  testify  by  reason  of 
a  want  of  religious  belief,  or  by  reason  of  infamy  of  character, 
or  for  any  other  cause  rendering  him  incompetent,  his  dj'ing  dec- 
larations are  not  receivable  in  evidence,  as  the  oath  derives  the 
value  of  its  sanction  from  the  party's  moral  sense  of  accountabil- 
ity to  God.  Whenever  it  appears  that  the  declarant  was  inca- 
pable of  this  religious  sense  of  accountability  to  his  Maker, 
whether  from  infidelity  or  otherAvise,  his  declarations  are  alike 
inadmissible. 

From  what  we  have  before  said,  it  is  apparent  that  prelimi- 
nary to  the  admission  of  dying  declarations  as  evidence,  there 
must  be  proof  that  they  were  made  under  a  sense,  by  the  party 

extremis  by  a  person  who  might  have  been  a  witness  if  living,  for  she  could  not 
under  any  circumstances  have  been  a  witness  if  living.  The  plaintiff  had  pro- 
duced a  surgeon  as  a  witness  to  show  from  his  examination  of  her,  and  what 
she  told  him,  that  she  was  in  a  good  state  of  health,  and  her  account  to  another 
person  of  her  health  at  the  same  time,  Lord  Ellenborough  said,  "  was  but  a  sort 
of  cross-examination  of  the  same  witness,  that  the  inquiry  was  upon  the  subject 
of  her  own  health,  which  was  a  fact  of  which  her  own  declaration  was  evidence ; 
that  such  declarations  are  always  received  on  such  inquiries,  and  must  be  re- 
sorted to  from  the  very  nature  of  the  thing."  I  think  it  may  safely  be  affirmed 
that  no  such  rule  of  evidence  in  civil  cases  is  to  be  found  in  practice  in  the  En- 
glish Courts;  with  us  there  is  certainly  none  such,  and  wherever  it  has  been  in 
any  measure  alluded  to,  it  has  uniformly  been  with  disapprobation.  That  the 
question  is  still  open  with  us  appears  from  the  case  oi  Jackson  v.  Vredeubnrgh, 
1  John.  Rep.  1G3,  where  it  is  said  that  it  will  be  unnecessary  to  determine 
whether  under  any  and  what  circumstances  the  declarations  of  a  competent  wit- 
ness in  ariiculo  mortis  can  be  introduced  as  legal  evidence  in  a  civil  cause.  In 
Jackson  v.  Kniffen,  2  John's.  Rep.  35,  Mr.  Justice  Livingston  says  if  the  dec- 
larations of  dying  persons  are  ever  to  be  received  in  evidence  (on  which  if  res 
integra  much  might  be  said),  yet  in  civil  cases  they  never  should  be  admitted. 
In  Capron  v.  Austin,  7  John.  Rep.  9G,  it  is  said  that  the  la<v  requires  the  sanc- 
tion of  an  oath  to  all  parol  testimony.  It  never  gives  credit  to  the  bare  asser- 
tion of  any  one,  however  high  his  rank  or  pure  his  morals,  and  it  is  fairly  to  be 
inferred  from  this  case,  that  the  Court  meant  to  say  that  declarations  in  extremis 
were  inadmissible  evidence,  except  in  the  single  case  of  homicide.  Having  an  op- 
portunity to  cross-examine  a  witness  is  a  high  and  important  right,  and  oiight  not 
to  be  violated,  except  from  the  most  imperious  necessity,  and  I  am  persuaded  that 
neither  principle  nor  policy  requires  the  adoption  of  any  such  rule  of  evidence 
in  civil  cases.  The  dying  declarations  of  Brown,  in  the  case  before  us,  ought 
not,  therefore,  to  have  been  used  in  evidence.  The  verdict  must  accordingly  be 
set  aside,  and  a  new  trial  awarded,  with  costs,  to  abide  the  event. 


DYING  DECLARATIONS.  161 

makiiii^  tliem,  of  impending  deatli.  The  court  must  be  satisfied 
tliat  they  were  made  under  that  solemn  sanction,  but  it  may  be 
inferred,  from  the  express  language  of  the  declarant,  or  from  the 
opinion  of  medical  or  other  attendants  stated  to  him,  or  fi-om  his 
conduct,  or  other  circumstance  of  the  case,  all  of  which  are  re- 
sorted to  in  order  to  ascertain  the  state  of  the  declarant's  mind. ^ 
The  dying  declarations  of  the  deceased  are  admissible  only  to 
prove  those  things  which  would  have  been  competent  for  him  to 
have  testified  to  if  sworn  and  a  witness  in  the  cause.  The  decla- 
rations must,  therefore,  be  confined  to  facts,  and  mere  matters  of 
opinion  are  not  admissible,  and  they  must  be  confined  to  what  is 
relevant  to  the  issue.  Dying  declai-ations  are  ordinarily  offered 
by  the  prosecution  in  support  of  the  charge  contained  in  the  in- 
dictment ;  but  they  are  equally  admissible,  and  may  be  oflf"ered 
in  evidence  by  the  defendant.  The  declarations,  before  they 
should  be  received,  should  be  complete  in  themselves ;  for  if  it  is 
apparent  that  the  dying  man  intended  to  complete  or  connect 
them  with  other  statements,  which,  from  any  cause,  he  is  pre- 
vented from  making,  they  Avill  be  rejected.  Where  the  deceased 
was  asked  who  shot  him,  and  he  replied,  giving  the  name  of  the 
prisoner,  the  declaration  was  held  competent,  although,  from 
weakness  and  exhaustion,  he  was  prevented  from  answering 
another  question  immediately  afterwards  propounded  to  him." 
Where  the  statement  of  the  deceased  witness  was  reduced  to 
writing  and  signed  by  him  at  the  time  it  was  made,  the  writing 
should  be  produced,  or  its  absence  satisfactorily  accounted  for, 
before  parol  evidence  or  a  copy  of  the  statement  would  be  ad- 
mitted to  supply  the  omission.^  In  some  of  the  States,  provi- 
sions are  made  by  statute  for  taking  the  deposition  of  the 
deceased,  and  where  the  deposition  has  been  taken  under  the 
statute,  and  is  inadmissible  in  evidence  for  want  of  legal  formal- 
ity, it  may  still  be  treated  as  the  dying  declaration  of  the  party 
made  in  extremis.* 

^John's  case,  1  East,  354;   Eex  v.  Mosehj,  Mood.'s  Cr.  Cases,  97;   Smith  v. 
The  State,  9  Humph.  9;    Oliver  v.  The  State,  17  Ala.  587. 

2  M'Lean  v.  The  State,  IG  Ala.  672. 

3  Bex  V.  Gay,  7  C.  &  P.  23 ;  Leach  v.  Simpson,  1  Law  &  Eq.  R.  58. 

*  On  the  trial  of  an  indictment  for  the  murder  of  a  wife  bj  her  husband,  the 
declarations  made,  in  extremis,  as  to  the  cause  of  her  death,  are  competent 


162  ECCLESIASTICAL  LAW. 

The  substance  of  the  declarations,  Avhere  they  are  not  re- 
duced to  writing,  may  be  given  in  evidence.^  It  is  for  the 
court,  in  the  first  instance,  to  determine  upon  the  admissibility 
of  the  declarations,  upon  proof  of  the  condition  of  the  mind  of 
the  deceased  at  the  time  they  were  made,  and  if  the  proof  does 
not  satisfy  the  court  that  they  were  made  in  extremis,  and  that 
they  are  dying  declarations  within  the  law,  they  should  not  be 
permitted  to  go  to  the  jury.^      The  declarations,  however,  being 

evidence  a<rainst  the  prisoner.     So   held    by  the  chancellor  and  judges,  their 
opinions  being  required  by  the  Governor,  pursuant  to  the  statute. 

The  prisoner  was  tried  at  the  Rensselaer  Oyer  and  Terminer,  in  July,  1845, 
before  Parker,  Chief  Judge,  and  others,  for  the  murder  of  his  wife  by  poisoning 
with  arsenic.  On  the  trial,  the  district  attorney,  after  laying  a  proper  founda- 
tion, offered  to  give  in  evidence  the  dying  declarations  of  the  deceased  as  to 
cause  of  death.  The  counsel  for  the  prisoner  objected  that  dying  declarations 
could  not  be  received  where  they  came  from  the  wife  against  the  husband;  but 
the  Court  overruled  the  objection,  and  admitted  the  evidence.  The  prisoner 
having  been  convicted,  the  case  was  reported  to  the  Governor,  who,  on  the  sec- 
ond day  of  September,  during  the  last  vacation,  consulted  his  legal  advisers  in 
such  cases.  (See  2  R.  S.  G58,  §§  13,  14.)  The  Chancellor,  the  Chief  Justice, 
and  Mr.  Justice  Beard.sley  (Jewett,  J.,  being  absent),  were  of  opinion  that  the  evi- 
dence was  properly  admitted;  that  the  dying  declarations  of  the  wife  maybe 
received  against  the  husband,  on  the  same  principle  that  she  is  allowed  to  testify 
against  him  where  the  complaint  is  of  violence  against  her  person.  Mr.  Justice 
Jewett,  being  afterwards  consulted  by  his  brethren,  declared  himself  of  the  same 
opinion.     2Vte  People  v.  Green^  1  Denio,  614,  G15. 

Rex  V.  Woodcock,  2  Leach,  Cr.  Cases,  5G3. 
1  Kelson  v.  The  Slate,  1 3  S.  &  M.  500. 

^  Dying  declarations  are  such  as  are  made  relating  to  the  facts  of  an  injury 
of  which  tiie  party  afterward  dies,  under  the  fixed  belief  and  moral  conviction 
that  immediate  death  is  inevitable,  without  opportunity  for  repentance  and  with- 
out hope  of  escaping  the  impending  danger.  The  court  should  determine  upon 
the  admissibility  of  such  declarations  upon  hearing  proof  of  the  condition  of  the 
mind  of  the  deceased  at  the  time  they  were  made;  which  proofs,  it  is  advised, 
should  not  be  taken  in  the  hearing  of  the  jury  impaneled  to  try  the  accused. 

The  substance  of  dying  declarations  may  be  given  in  evidence  to  the  jury, 
and,  if  necessary,  through  inter[)reters. 

If  dying  declarations  are  permitted  to  go  to  the  jury,  then  also  may  the)' 
hear  the  whole  evidence  as  to  the  condition  of  mind  of  the  deceased,  and  other 
circumstances  at  the  time  they  were  made,  and  pass  upon  their  credibility 
and  weight. 

These  two  assignments  ol' error  maybe  considered  and  disposed  of  together. 
The  statements  of  the  deceased  as  to  the  cause  of  the  injury  from  which  death 
finally  results,  when  dying  declarations  within  the  meaning  of  the  law  are  ad- 
mitted in  evidence  on  the  ground  of  necessity,  and  the  rule  under  which  they 


DYING  DECLARATIOXS.  1G3 

admitted  by  tlie  court,  the  whole  evidence,  including  that  heard 
by  the  court  on  the  preliminary  inquiry  as  to  the  condition  of 
the  mind  of  the  deceased  at  the  time  they  were  made,  should 
then  go  to  the  jury  to  enable  them  advisedly,  and  from  all  the 
light  of  facts  and  circumstances  afforded,  to  determine  upon  the 
credibility,  weight,  and  force  of  the  evidence. 

The  condition  and  state  of  the  mind  of  the  deceased,  with 
all  the  attendant  circumstances  bearing  upon  the  question,  are 

are  admitted  forms  an  exception  in  the  law  of  evidence.  The  accused  under  the 
rule  has  not  tlie  benefit  of  "meeting  the  witness  against  him  face  to  face" — a 
constitutional  right  in  all  criminal  trials,  with  this  solitary  exception,  he  is  de- 
prived of  the  security  of  an  oath  attended  with  consequences  of  temporal  pun- 
ishment for  perjury.  He  is  deprived  of  the  great  safeguard  against  misrepre- 
sentation and  misapprehension — the  power  of  cross-examination.  The  evidence 
is  hearsay  in  its  character;  the  statements  are  liable  to  be  misunderstood  and 
to  1)6  misrepeated  upon  the  trial,  and  the  evidence  goes  to  the  jury  with  sur- 
roundings tending  to  produce  upon  the  mind  emotions  of  deep  sympathy  for 
the  deceased,  and  of  involuntary  resentment  against  the  accused. 

It  is  vain  to  attempt  to  disguise  the  infirmities  and  imperfections  of  the 
human  mind  and  its  susceptibility  to  false  impressions  under  circumstances 
touching  the  heart  and  exciting  the  sympathies  :  and  the  law  has  wisely,  in  case 
of  dying  declarations,  required  all  the  guarantees  of  truth  the  nature  of  the  case 
admits  of.  The  principle  upon  which  such  declarations  are  admitted  is  that 
thev  are  made  in  a  condition  so  solemn  and  awful  as  to  exclude  the  supposition 
that  the  party  making  them  could  have  been  influenced  by  malice,  revenge,  or 
any  conceivable  motive  to  misrepresent,  and  when  every  inducement,  emotion, 
and  motive  is  to  speak  the  truth;  in  other  words,  in  view  of  impending  death, 
and  under  the  sanctions  of  a  moral  sense  of  certain  and  just  retribution.  iJying 
declarations  are,  therefore,  such  as  are  made  by  the  party  relating  to  the  facts 
of  the  injury  of  which  he  afterwards  dies,  under  the  fixed  belief  and  moral  con- 
viction that  his  death  is  impending,  and  certain  to  follow  almost  immediately, 
without  opportunity  for  repentance  and  in  the  absence  of  all  hope  of  avoidance, 
when  he  has  despaired  of  life  and  looks  at  death  as  inevitable  and  at  hand. 

It  is  for  the  court  in  the  first,  instance  to  determine  upon  the  admissibility 
of  the  declarations  upon  proof  of  the  condition  of  the  mind  of  the  deceased  at 
the  time  they  were  made;  and  if  the  proof  does  not  satisfy  the  court  beyond  rea- 
sonable doubt  that  they  were  made  in  extremity,  and  that  they  are  dying  decla- 
rations within  the  law,  they  should  not  be  permitted  to  go  to  the  jury. 

There  can  be  no  question  that,  tested  by  the  principles  here  laid  down,  the 
declarations  made  by  deceased  to  Izerman  are  not  dying  declarations,  and  we 
proceed  to  examine  as  to  the  declarations  made  to  Eick. 

Taking  the  words  of  the  deceased  that  he  "had  a  dangerous  wound  and 
must  die,"  and  the  remark  on  parting  with  Eick,  "that  they  would  never  meet 
again,"  without  looking  to  the  attending  facts  and  circumstances,  we  should  un- 
hesitatingly conclude  that  the  impression  was  upon  his  mind  that  he  soon  should 


164  ECCLESIASTICAL  LAW. 


proper  for  tlicir  consideration,  cand  there  is  no  ground,  upon  prin- 
ciple or  authority,  for  exckiding  from  their  consideration  the 
statement  of  the  deceased  as  to  his  apprehension  of  death,  nor 
as  to  the  surrounding  circumstances  constituting  or  forming  the 
rrs  gcstce  and  tending  to  establish  the  existence  or  non-existence 
of  that  condition  of  mind  -which  would  constitute  his  statements 
as  to  the  cause  of  the  injury,  in  law,  dying  declarations.^ 


CHAPTER  IX. 

ANCIENT    POSSESSIONS. 

The  third  exception  to  the  rule  excluding  hearsay  evidence 
is  in  cases  of  ancient  possessions,  and  in  favor  of  the  admission 
of  ancient  documents  in  support  of  such  ancient  possessions. 
Such  declarations  are,  however,  generally  inadmissible  when 
offered  in  support  of  private  rights  not  affecting  any  public  or 
general  interest,  except  where  they  purport  to  constitute  a  part 
of  the  transaction  or  res  gestce.  But  it  has  often  been  made  a 
question  Avhether  ancient  documents  are  admissible  in  evidence 
w^here  they  are  not  shown  to  accompany  and  form  a  part  of  the 
legal  transfer  of  title  and  possession.  The  better  opinion  is, 
that  the  document  may  be  read  in  evidence  if  it  appears  to  have 
been  contemporaneous  with  the  act  of  transfer  and  come  from 
the  proper  custody.  Documents  found  in  a  place  in  which,  and 
under  the  care  of  persons  with  whom,  such  papers  might  natu- 

die.  The  mere  declarations  or  statements  of  the  deceased  as  to  his  condition 
and  expectation  are  not  the  only  test  from  which  to  ascertain  his  true  state  of 
mind. in  this  respect;  but  the  court  should  look  not  only  to  his  languaj^e,  but  to 
ill!  the  facts  existing  and  surroundinor  the  party  at  the  time,  before,  and  after  the 
floclarations  wore  made  forming  the  res  gestce^  and  tending  to  show  his  true  state 
of  mind.  Upon  this  record  we  are  not  compelled  to  decide  upon  this  ruling  of 
the  court;  but  the  impossibility  of  knowing  wliat  effect  upon  the  minds  of  the 
jury  the  hearing  of  this  examination  might  have,  or  what  tinge  or  coloring  it 
might,  in  their  minds,  give  to  other  evidence  against  the  accused  in  case  the 
declarations  should  not  go  to  them  finally  as  evidence,  would  suggest  the  propriety 
of  sending  the  jury  out  in  charge  of  a  sworn  officer  pending  this  examination. 
Starkey  v.  The  Pcnph,  17  Tils.  17. 

^  1  Phillips's  Ev.  238 ;  2  Starkie's  Ev.  2G;5 ;  Lambert  v.  The  State,  23  Miss.  355. 


ANCIENT  POSSESSIONS.  165 

rally  be  expected  to  be  found,  or  in  the  possession  of  persons 
having  an  interest  in  them,  are  in  precisely  the  custody  which 
gives  authenticity  to  them.  This  rule  is  one  of  the  grounds  on 
which  we  insist  on  the  genuineness  of  the  Bible.  The  Scrip- 
tures were  found  in  the  proper  custody  or  place,  where  alone 
they  ought  to  be  looked  for.  They  were  found  in  the  Church, 
where  they  have  been  kept  through  a  period  of  successive  ages. 
They  have  been  constantly  referred  to  as  coming  from  the 
proper  depository  where  they  purport  to  have  been  kept,  and 
that  fact  has  never  been  questioned  by  the  most  vigilant  or  the 
severest  critics  wdio  have  called  in  question  the  authenticity  of 
the  Scriptures  themselves.  According  to  the  rules  that  we  have 
before  referred  to,  the  burden,  or  onus,  is  on  the  objector  to  im- 
peach the  genuineness  thereof,  and  not  on  the  Christian  to  estab- 
lish it ;  for  their  genuineness  is  pj'ima  facie  established  by  the 
proof  that  they  come  from  the  proper  custody.  It  is  further 
requisite,  in  this  class  of  cases,  as  near  as  the  nature  of  the  case 
Avill  admit,  to  furnish  some  evidence  of  acts  accompanying  the 
documents  offered  in  evidence,  as  a  further  assurance  of  their 
genuineness.  A  distinction  exists  between  documents  that  bear 
date  ante  litem  mofani, — that  is,  before  suit  is  brought  or  contro- 
versy moved, — and  post  litem  motam.  In  the  latter  case  the  docu- 
ment requires  some  evidence  of  corroboration,  even  in  cases 
where  the  traditional  evidence  is  admissible. 

In  the  former  Avhere  the  transaction  is  very  ancient  so  that 
proof  of  contemporane<?us  acts  are  not  easily  obtainable,  its  pro- 
duction is  dispensed  with.^  The  general  principle  is,  that  where 
one  claims  under  a  deed  or  other  instrument  used  in  the  convey- 
ance of  real  estate  which  appears  on  the  face  of  it  to  have  been 
executed  by  virtue  of  a  power  from  the  grantor,  the  power  or 
authenticated  copy  of  it  should  be  produced  in  evidence  to  sup- 
port the  deed,  in  order  that  it  may  be  seen  Avhether  there  was  an 
authority  for  the  act  to  the  extent  to  which  it  is  performed.  But 
the  same  principle  by  Avhich  deeds  may  be  admitted  in  evidence 
Avithout  proof  of  tiieir  execution  may  be  applied  to  the  power 
under  which  it  purports  to  be  executed.  In  either  case  the  deed 
\^  prima  facie  evidence  of  title,  if  the  possession  of  the  premises 


^  Clarkson  v.  Woodhonse,  5  Tenn.  R.  412. 

12 


166  ECCLESIASTICAL  LAW. 

purporting  to  have  been  granted  has  been  taken  and  continued 
under  the  deed.  ^ 

In  this  connection  it  may  be  proper  to  mention  t\\e  case  of 
ancient  boundaries  in  proof  of  whicli  traditional  evidence  is 
sometimes  admitted  from  the  nature  and  necessity  of  tlie  case, 
accordingly  evidence  of  reputation,  of  boundaries,  of  pai-ishes, 
towns,  and  the  hke,  are  received  where  they  are  of  remote  an- 
tiquity ;  but  the  weight  of  authority  is  against  tlie  admissibility 


'1  Starkie's  Ev.  5  Am.  Ed.  832,  and  the  cases  there  collected.  Walder  v. 
TtiWe,  4  N.  H.  371.      Tolman  v.  Emerson,  4  Pick.  lf.2. 

Spencer,  J.  "The  questions  in  this  cfise  are  whether  the  will  of  Matthys 
Blanshaw  was  well  proved,  and  whether  Brachie,  the  wife  of  the  lessor,  alone 
took  the  share  of  Matthew,  one  of  the  children  of  the  testator. 

"It  has  been  decided  in  this  Court  that  a  will  stood  upon  the  same  footing  as 
a  deed,  with  respect  to  proof,  and  that  an  ancient  will  was  subject  to  the  same 
rule  of  evidence  as  an  ancient  deed.  The  will  is  dated  21st  of  April,  1 770,  but  the 
testator  did  not  die  until  1780  or  1781.  A  will  does  not  take  effect  until  the 
testator's  death;  but  it  conveys  only  the  lands  of  which  he  was  seized  when  it 
was  made,  if  the  devise  be  ever  so  broad,  and,  therefore,  though  not  consum- 
mated until  tlie  death  of  the  devisor,  it  relates  back  to  the  time  of  the  devise. 
The  reason  of  the  law  in  dispensing  with  the  attendance  of  witnesses  to  a  deed 
of  thirty  years'  standing,  and  where  possession  has  been  held  under  it,  is 
founded  on  the  presumption  that  they  are  dead,  and  the  impossibility  of  proving 
its  execution,  and  though  they  are,  in  fact,  alive,  it  is  not  necessary  to  produce 
them;  for  the  rule  is  general  in  its  operation.  The  reason  of  this  rule  applies 
to  the  time  of  the  execution  of  a  will  and  not  to  the  death  of  the  testator;  for 
the  same  difficulty  of  proof  exists  in  the  one  case  as  in  the  other.  I  think, 
therefore,  that  when  wills  and  deeds  have  the  same  principle  applied  to  them,  as 
respects  their  proof,  it  is  following  the  analogy  to  consider  a  will  as  an  ancient 
one  when  thirty  years  have  elapsed  since  its  execution,  and  that  it  may  be  read 
in  evidence  where  the  possession  has  been  held  according  to  its  provis- 
ions for  twenty-.seven  years,  as  in  the  present  case.  If  this  be  correct,  the 
production  of  the  will,  the  proof  that  all  the  children  held  under  it,  and  had 
divided  the  estate  according  to  the  provisions,  was  sufficient  proof  prima 
facie  of  its  execution.  In  the  case  of  the  Governor  and  Company  of  the 
Chehea  Water  Works  v.  Cowper,  1  Esp.  Cas.  275,  Lord  Kenyon  admitted 
a  bond  to  be  given  in  evidence,  saying  that  all  deeds  of  above  thirty  years' 
date  proved  themselves,  and  that  it  added  to  its  authenticity,  coming  from 
among  the  papers  of  the  company,  and  lieing  in  the  handwriting  of  their 
secretarv ;  and  a  case  is  cited  by  Lord  Kenyon  wliere  Lord  Mansfield  de- 
clared that  he  would  admit  a  bond  of  above  thirty  years'  standing,  if  proved 
to  have  been  found  among  (he  papers  of  the  deceased.  The  ancient  rule  re- 
quired the  lapse  of  sixty  years  before  a  deed  proved  itself;  this  rule  has  been 
narrowed  to  thirty  years,  and,  as  by  our  statute  of  limitation,  the  possession  of 
land  for  twenty-five  years  gives  a  title  against  all   the  world,  I  consider  a  deed 


ANCIENT  rOSSESSTOXS.  167 

of  reputation  in  support  of  the  boundary  of  a  private  estate, 
where  sucli  houndary  is  not  identical  with  another  of  a  public  or 
quasi  public  nature.' 

of  more  than  thirtv  years'  standing,  and  where  possession  has  been  held  under 
it  for  twenty-five  years,  good  evidence,  witliout  proving  its  execution."  Jackson  v. 
Blansham,  3  John.  294,  295. 

1 1  Phillip  Ev.  3  London  Ed.  1S2. 
Lord  Kenyon,  C.  J.  (after  the  argument),  said  :  "  The  evidence  given  by  the 
defendant  of  an  usage  of  about  seventy  years  is  extremely  strong  in  his  favor, 
and  the  only  evidence  to  weigh  again.«t  it  is  that  of  the  presentment  signed  by 
Kobert  Wood,  but  that  is  not  necessarily  inconsistent  with  it.  The  lord  might 
have  the  general  right,  and  yet  a  particular  tenement  have  a  prescriptive  right 
also.  On  that  ground,  therefore,  there  is  no  ground  for  impeaching  the  verdict. 
With  respect  to  the  other  question  raised  respecting  the  rejection  of  general 
evidence  of  reputation,  it  is  involved  in  great  dispute,  and  one  is  apt  to  imbibe 
prejudices  from  the  opinion  one  has  always  heard  inculcated.  Upon  the  Oxford 
circuit  which  I  went,  such  evidence  was  never  received;  and  I  can  not  help 
thinking  that  that  practice  is  best  supported  by  principle.  Evidence  of  reputa- 
tion upon  general  points  is  receivable,  because  all  mankind  being  interested 
therein,  it  is  natural  to  suppose  that  they  may  be  conversant  with  the  subjects, 
and  that  they  should  discourse  together  about  them,  having  all  the  same  means 
of  information.  But  how  can  this  apply  to  private  titles,  either  with  regard  to 
particular  customs  or  private  prescriptions?  How  is  it  possible  for  strangers  to 
know  any  thing  of  what  concerns  only  these  private  titles?  I  barely,  however, 
throw  out  these  hints  as  the  ground  of  my  present  opinion,  laying  in  my  claim 
to  change  that  opinion,  if  I  should  hear  any  thing  that  shakes  it."  Moorewood  v. 
Wood,  14  East,  328. 

Buller,  J.,  says :  "  I  have  already  mentioned  what  has  been  the  general  prac- 
tice on  the  Oxford  and  on  the  Western  Circuit;  and,  as  there  are  two  judges 
from  each  of  those  circuits  in  Court,  it  is  hardly  likely  for  us  to  agree  upon  the 
general  point.  But  thus  far  I  agree  with  my  lord  and  my  brother  Ashhurst, 
that  in  no  case  ought  evidence  of  reputation  to  be  received,  except  a  foundation 
be  first  laid  by  other  evidence  of  the  right.  Now  here  there  was  no  foundation, 
or  at  least  a  very  slight  one  in  comparison  to  the  evidence  given  by  the  defend- 
ant But  I  can  not  agree  that  it  ought  not  to  be  received  at  all.  It  was  settled 
that  it  ought  in  the  cases  cited  in  argument,  and  also  in  many  other  instances, 
which  relate  merely  to  private  titles,  in  one  in  particular  as  to  whether  such  a 
piece  of  ground  is  parcel  of  one  close  or  another.  So  again  in  the  case  of  ped' 
igrees.  But  as  to  this  particular  case  the  evidence  is  very  strong  with  the  de- 
fendant. It  was  not  proved  that  the  estate  in  question  was  in  the  posses- 
sion of  the  defendant's  grandfather  at  the  time  he  signed  the  presentment, 
■which  was  read  in  evidence,  and  even  if  that  were  made  out,  all  the  evidence 
since,  for  above  sixty  years,  is  the  other  way.  The  defendant's  ancestors  have 
all  that  time  taken  stone  in  defiance  of  the  presentment  and  in  the  face  of  the 
lord  himself,  who  was  dared  to  brin?  an  action  for  it.  Now  supposing  all  the 
evidence  of  reputation  had  been  received,  I  think  it  ought  to  have  weighed  so 
slightly  with  the  jury  that  the  Court  ought  not  to  grant  the  new  trial.     For  T 


168  ECCLESIASTICAL  LAW. 

Recently  it  has  been  decided  in  England,  upon  the  full  con- 
sideration, that  traditionary  evidence  respecting  rights  not  of  a 
public  nature,  is  inadmissible.^  Such  evidence,  however,  has 
been  admitted  in  support  of  private  boundaries  in  several  of  the 
States.^  In  questions  of  boundary,  the  single  declarations  of  a 
deceased  individual  as  to  a  line  or  corner  was  admitted  by  the 

do  not  know  that  because  evidence  which  ought  to  have  been  received  was  re- 
jected therefore  the  Court  are  bound  to  grant  a  new  trial,  if  they  see  clearly 
that  the  verdict  is  right,  notwithstanding  such  evidence  had  been  admitted." 
U  East,  :529. 

In  Nichols  v.  Parker,  Exeter  Summer  Assizes,  1805,  upon  a  question  of 
boundary  between  two  parishes  and  manors,  whether  a  certain  common  was 
within  the  parish  and  manor  of  Holne  of  which  Sir  Bouchier  Wrey,  Bart.,  was 
lord,  or  within  the  parish  of  Buckfastleigh  and  manor  of 'Mainbow,  of  which 
Colonel  Parker  was  lord,  Le  Blanc,  J.,  admitted  evidence  of  what  old  persons 
now  dead  had  said  concerning  the  boundaries  of  the  parishes  and  manors, 
though  not  as  to  particular  facts  or  transactions.  And  this,  though  these 
old  persons  were  parishoners,  and  claimed  rights  of  common  of  the  wastes, 
which  would  be  enlarged  by  their  several  declarations;  there  not  appearing  to  be 
any  dispute  at  the  time  respecting  the  right  of  the  old  persons  making  the  dec- 
larations, at  least  no  litigations  pending  (for  in  truth  the  boundary  had  been  long 
in  dispute  between  the  respective  parishes  and  manors ;  and  intersecting  peram- 
bulations had  been  made,  both  before  and  after  such  declarations  by  the  respec- 
tive parties),  so  that  those  persons  could  not  be  considered  as  having  it  in  view 
to  make  evidence  for  themselves  at  the  time;  and  in  support  of  the  same  opin- 
ion were  cited  T/ie  Kin;/  v.  The  Inhabitants  of  Hammersmith,  sittings  at  West- 
minster after  Hilary  Term,  1776,  before  Lord  Mansfield,  C.  J.,  and  a  case  of 
Doicn  v.  Hole,  at  Taunton,  in  1795,  before  Lawrence,  J.,  in  both  which  the 
same  point  had  been  ruled.     14  East,  330. 

In  Clothier  v.  Chapman,  Bridgewater,  Summer  Assizes,  1805,  where  in  re- 
plevin the  question  was  whether  Street  Hill,  alias  Iveythrone  Hill,  a  waste,  was 
parcel  of  Iveythrone  Farm  and  the  soil  and  freehold  of  one  Rooke  or  not,  evidence 
was  offered  of  declarations  of  old  persons  deceased,  as  to  the  ancient  boundary  of 
the  waste  belonging  to  Iveythrone  Farm,  that  it  extended  to  the  inclosures  on 
the  north  side  of  the  hill  and  2  Boll.  Ahr.  180  pi.  5  tit.  Prerogative  was  cited  in 
support  of  it;  where  it  was  hold  that  such  declarations  as  to  whether  certain 
land  was  parcel  of  a  manor  or  of  an  estate  were  deemed  admissible  as  between 
subjects,  but  not  as  against  the  Crown;  and  Davies  v.  Pierce,  2  Term.  Rep.  53, 
was  also  cited.  But  Graham,  B.,  rejected  the  evidence  in  this  case  where  the 
question  was  not  as  to  tlie  boundary  of  a  parish  or  manor,  but  between  one 
person's  [)rlvate  property  and  another.  There  was  a  verdict  afterwards  for  the 
defendant  by  whom  this  evidence  had  been  offered,  so  that  the  question  could 
not  be  stirred  again.     II  East,  330,  331. 

^  Dvnraven  v.  TAexoellyn,  15  A.  D.  &  El.  701. 

^Kinney  v.  Farnsvmrth,   17  Conn.   355-3G3 ;   Neiman  v.   Wai-d,  1  Watts  & 
Sarg.  ()8;    Tale  v.  Southard,  1  Ilawkes,  45. 


ANCIENT  POSSESSIONS.  109 

court  as  of  common  reputation,  the  court  saying,  ''  wlictlicr  this 
is  within  the  spirit  and  reason  of  the  rule  it  is  now  too  late  to  in- 
quire. It  is  the  well  established  law  of  this  State,  and  if  the 
propriety  of  the  rule  was  now  res  Integra,  perhaps  the  necessity 
of  the  case,  arising  from  the  situation  of  our  country  and  the 
want  of  self-evident  terminal  points  of  our  lands,  would  require 
its  adoption,  for  it  oftentimes  leads  to  the  establishment  of  truth.  ^ 
In  South  Carolina  the  declarations  of  a  deceased  surveyor 
with  reference  to  the  lines  around  a  private  estate,  which  he  has 
originally  surveyed,  were  held  admissible.  ^  But  the  question  was 
ruled  otherwise  by  the  Supreme  Court  of  the  United  States.' 


'  Lasser  v.  Herring^  Dever.  B40.  ^  Spears  v.  Coats,  3  M'Cord,  227. 

^  The  first  question  was  upon  the  admissibility  of  the  evidence  of  witnesses 
offered  by  the  demandments  to  prove  that  one  Moore,  whose  name  was  put  down 
as  one  of  the  original  chain  carriers  in  making  Remey's  survey,  was  dead,  and 
that  he  attended,  with  the  witness.  Camp  Mullins,  about  twenty-four  or  twenty- 
five  years  ago,  when  one  Charles  Smith  run  from  the  mouth  of  Pond  Creek  to 
the  White  Oak  Tree,  and  also  run  the  line  north  from  the  mouth  of  Pond  Creek; 
and  while  at  the  corner,  and  running  the  line,  he  declared  that  to  be  the  corner 
made  by  Kincaid  (the  surveyor)  and  the  lines  run  by  Wilson  by  the  direction  of 
Kincaid  for  original  survey;  and  also  to  prove  what  Moore  had  said  to  others 
relative  to  the  boundary  of  Remey's  patent  and  the  making  of  the  original  sur- 
vey since  the  settlement  and  possession  of  Pearl  on  the  land  in  controversy. 
This  evidence  being  objected  to,  was  rejected  by  the  Court,  and  this  constitutes 
the  matter  of  the  first  exception  of  the  demandants. 

We  are  of  opinion  that  the  evidence  was  properly  rejected.  It  was  not 
merely  hearsay,  but  hearsay  not  to  matters  of  general  reputation  or  common  in- 
terest among  many,  but  to  specific  facts,  namely,  the  manner  and  place  of  run- 
ning the  boundary  lines  of  Remey's  patent.  The  general  rule  is,  that  evidence 
to  be  admissible  should  be  given  under  the  sanction  of  an  oath  legally  adminis- 
tered, and  in  a  judicial  proceeding,  depending  between  the  parties  affected  bv 
it,  or  those  who  stand  in  privity  of  estate  or  interest  with  them.  So  it  was  laid 
down  by  Lord  Kenyon  in  his  able  opinion  in  The  King  v.  EnsiveU,  3  Term  Rep. 
721.  Certain  exceptions  have,  however,  been  allowed,  which,  perhaps,  may  be 
as  old  as  the  rule  itself.  But  these  exceptions  stand  upon  peculiar  grounds,  and, 
as  was  remarked  by  Lord  Ellenborough  in  Weeks  v.  Sparke,  1  M.  &  Sel.  086, 
the  admission  of  hearsay  evidence  upon  all  occasions,  whether  in  matters  of 
public  or  private  right,  is  somewhat  of  an  anomaly.  Hearsay  is  admitted  in 
cases  of  pedigree,  or  prescriptive  rights  and  customs,  and  some  other  cases  of 
public  or  quasi  public  nature.  In  cases  of  pedigree  it  is  admitted  upon  the 
ground  of  necessity,  or  the  great  difficulty,  and  sometimes  the  impossibility,  of 
proving  remote  facts  of  this  sort  by  living  witnesses.  But  in  these  cases  it  is 
only  admitte  1  when  the  tradition  comes  from  persons  intimately  connected,  or 
in  close  relation  with,  the  family,  or  from  sources  of  a  kindred  nature,  which. 


170  ECCLESIASTICAL  LAW. 


CHAPTER  X. 

MATTERS    OF    PUBLIC    AND    GENERAL    INTEREST. 

A  FOURTH  exception  to  the  rule  excluding  hearsay  evidence 
arises  in  matters  of  public  and  general  interest.  In  such  matters 
all  persons  are  presumed  to  be  conversant,  just  as  the  law  pre- 
sumes individuals  to  be  conversant  with  their  own  private  affairs. 
Individuals  talk  of  their  private  rights  ;  so  common  rights  are 
usuallv  talked  of  by  the  public  ;  and  what  is  there  stated  in  con- 
Tersation  may,  prima  facie,  be  regarded  as  true,  especially  where 
it  is  in  accordance  with  the  current  of  assertion.^ 


in  a  general  sense,  may  be  said  to  import  verity,  there  being  no  lis  mota  or  other 
interest  to  affect  the  credit  of  their  statement.  So  the  law  was  expounded  by 
Lord  Kenyon  in  The  King  v.  Enswell,  3  Term  Rep.  723;  and  by  Lord  Eldon 
in  Vowles  v.  Young,  13  Ves.  143;  and  in  WMllocke  v.  Baker,  13  Ves.  514; 
ElUcott  V.  Pearl.  12  Curtis,  181. 

^  Lord  EUenborough,  Chief- Justice,  says:  "Notwithstanding  the  practice 
may  have  prevailed  for  a  long  time  to  receive  ships'  registers  as  evidence  with- 
out more  of  the  property  being  in  the  persons  named  therein,  yet  when  we  are 
brought  to  consider  the  admissibility  of  such  evidence  against  the  defendant  in 
a  case  where  he  has  done  no  act  to  adopt  the  register  as  having  been  made  by 
his  authority,  we  can  not  give  effect  to  it  without  saying  that  a  party  may  have 
a  burthensome  charge  thrown  upon  him  by  the  act  of  a  third  person  without  his 
own  assent  or  privity.  If  it  had  appeared  that  the  defendant  had  by  any  act  of 
his  own  recognized  the  register,  he  would  have  been  liable  to  all  the  conse- 
quences as  a  part  owner,  wliich  it  describes  him  to  be;  but  here  he  has  done  no 
act  to  adopt.  His  partner,  Clarke,  has  indeed  dealt  with  the  property  as  if  the 
defendant  were  a  part  owner  by  registering  the  ship  in  his  name,  but  the  act  of 
a  third  person,  without  the  act  of  the  defendant  to  recognize  it,  can  not  throw 
upon  him  a  burthen  without  violating  the  ]ilain  rule  of  law.  The  case  of  en- 
rolments stands  upon  a  particular  statute.  The  stat.  10  Ann.  c.  18  s.  3,  pro- 
vides that  copies  of  the  enrolment  of  indentures  of  bargain  and  sale,  examined 
with  the  enrolment,  and  signed  by  the  proper  oflBcer  and  proved  upon  oath,  shall 
have  the  same  force  and  effect  as  the  original  indentures.  But  the  register  acts 
have  not  attributed  to  the  registers  the  same  effect  as  if  the  persons  therein 
named  were  proved  to  be  owners.  Therefore,  reserving  my  opinion  in  what 
respects  such  registers  may  be  evidence,  whether  available  for  certain  public 
purposes  wliich  the  legislature  h:id  in  view  in  requiring  such  registers,  or  what 
conclusions  m.ay  be  drawn  from  them  if  adopted  by  the  parties  therein  named, 
T  can  not  say,  in  this  case,  that  without  any  evidence  of  such  adoption  by  the 
defendant,  he  can  be  charged  as  owner  upon  the  mere  proof  of  the  register 
naming  him  as  such."      Tinkler  v.  IValpole,  11  East,  230-232, 


MATTERS  OF   PUBLIC  AND  GENERAL  INTEREST.  171 

By  tlie  Roman  law,  reputation  or  common  fame  seems  to  have 
been  admissible  in  evidence  in  all  cases,  but  it  was  not  generally 
deemed  sufficient  proof  unless  corroborated.  It  was,  however, 
held  sufficient  plena  2^robatio  Avherever,  from  the  nature  of  the 
case,  better  evidence  was  not  obtainable.^  In  matters  in  which 
all  are  concerned,  reputation  from  any  one  appears  to  be  receiv- 
able ;  but  its  value  is  dependent  upon  the  means  of  knowledge 
of  the  declarant.  AVliere  the  fact  in  controversy  is  one  in  which 
all  the  members  of  the  community  are  not  interested,  but  only 
those  who  live  in  a  particular  district,  declarations  of  persons 
having  no  interest  and  living  outside  of  the  district,  are  not  admis- 
sible. In  Older  to  the  admission  of  this  species  of  hearsay  evi- 
dence it  is  necessary  that  it  should  be  confined  to  cases  of  ancient 
rights  and  to  the  declarations  of  persons  supposed  to  be  dead. 

In  order  to  the  admission  of  this  class  of  evidence,  it  is 
necessary  that  the  origin  of  the  rights  in  question  should 
antedate  the  time  of  legal  memory.  It  is  usually  held  to  be 
twenty-one  years,  and  to  be  incapable  of  direct  proof  by  living 
witnesses.  It  was  formerly  considered  necessary,  in  order  to  the 
reception  of  hearsay  evidence  in  matters  of  general  interest,  that 
a  foundation  should  be  laid,  by  proof  of  enjoyment  within  living 
memory  ;  but  this  doctrine  has  since  been  overruled,  and  it  is 
now  only  material  as  giving  weight  to  the  evidence  in  the  case  of 
a  private  right.  Evidence  of  reputation  has  sometimes  been 
admitted  in  confirmation  of  actual  enjoyment.  It  is,  however, 
allowed    in  support  of  the   right,    but   never   against   it.^      The 

Le  Blanc,  Judge,  says:  "These  registers  were  not  produced  in  evidence  for 
any  public  purpose  within  the  view  of  the  registry  acts,  but  between  private 
persons  and  for  private  purposes;  and  what  is  now  contended  is,  that  those  acts 
having  required  these  registers  to  be  made  for  certain  purposes,  they  shall  be 
received  as  evidence  for  every  purpose  ;  but  I  can  not  adopt  the  argument  to 
that  extent.  For  every  purpose  that  the  statutes  have  required  these  public 
documents  to  be  made,  they  are  evidence  by  force  of  the  statutes;  but  when 
produced  for  any  other  purpose,  they  are  stripped  of  legislative  authoritj',  and 
must  be  evidence  or  not,  according  to  the  general  principle  of  evidence.  In  this 
case,  therefore,  the  registers  having  been  made  by  third  persons,  can  not  be 
evidence  against  the  defendant  without  proof  of  their  having  been  acknowledged 
by  him."     U  East,  232. 

Wicks  V.  SparJc,  1  M.  &  S.,  686;  Berkeley  Peerage  Case,  4  Camp.  416. 

1  1  Cowel,  4U. 

2  White  V.  Lisle,  4  Mad.  R.  214-225. 


172  ECCLESIASTICAL  LAW. 


ground  on  which  such  evidence  proceeds  is,  that  the  declarations 
are  made  by  a  party  who  knows  the  truth  and  who  is  without  any 
temptation  to  misrepresent  it.  And  this  introduces  another  im- 
portant qualification ;  that  is,  that  the  declaration  offered  in 
evidence  must  be  made  before  any  controversy  had  arisen,  or,  as 
it  is  ordinarily  expressed,  ante  litem  motani,  for  no  man  is  pre- 
sumed by  the  law  to  be  indifferent  with  reference  to  matters  in 
actual  controversy  ;  for  when  a  matter  in  controversy  arises, 
people  usually  take  sides.  To  avoid  the  mischief  Avhich  would 
otherwise  result  under  such  circumstances,  all  ex  parte  declara- 
tions, made  subsequent  to  the  beginning  of  the  controversy,  are 
therefore  excluded. 

The  term  controversy  should  be  understood  not  as  the  com- 
mencement of  the  suit,  but  as  the  commencement  of  the  disagree- 
meni.  Declarations  made  after  commencement  of  the  controversy 
are  not  receivable,  though  it  be  shown  that  the  existence  of  the 
controversy  is  or  was  not  known  to  the  declarant.  The  declar- 
ant's ignorance  or  knowledge  of  the  fact  would  involve  the  in- 
vestigation of  a  collateral  fact,  which  courts  will  not  entertain. 
Before  declarations  are  admissible,  the  declarant  must  either  be 
absent  or  dead  ;  and  it  is  obvious  that  it  would  be  opening  the 
door  wide  and  tend  to  confuse  the  decision  of  the  main  point  in 
issue,  if  proof  on  both  sides  were  admitted  of  the  knowledge  of 
a  controversy.^ 

A  want  of  competent  knoAvleclge  in  the  declarant  is  gener- 
ally regarded  as  sufficient  cause  for  rejecting  the  evidence  of 
i-eputation  in  matters  of  mere  private  right;  but  such  evidence 
is  receivable  upon  matters  of  a  public  or  quasi  public  nature,  for 
the  reason  assigned  by  Lord  Kenj^on,  "That  all  mankind  were 
interested  tlierein,  and  it  is  natural  to  suppose  that  they  are  con- 
versant with  the  subjects,  and  that  they  should  discourse  together 
about  them,  having  all  the  same  means  of  information."  It  is 
obvious,  however,  that  this  reason  does  not  apply  to  private  titles 
or  private  prescriptions,  or  to  particular  customs.  It  has  some- 
times been  claimed  that  the  case  of  prescriptive  right  constituted 
an  exception;  but  it  will  be  found  where  evidence  of  reputation 
has  been  admitted  in  such  cases,  the  right  was  one  in  which  the 


Berkeley  Peerage  Case,  4  Ciimji!).  417. 


MATTERS  OF  PUBLIC  AND  GENERAL  INTEREST.  173 

public  had  all  along  with  the  private  individual  been  equally  in- 
terested.^ The  general  rule  is  that  evidence  to  be  admissible 
should  be  given  under  the  sanction  of  an  oath  legally  adminis- 
tered, and  in  a  judicial  proceeding  pending  between  the  parties 
affected  by  it.^  Certain  exceptions  have,  however,  been  allowed 
which  perhaps  may  be  as  old  as  the  rule  itself,  but  these  excep- 
tions stand  upon  peculiar  grounds.  "The  admission,"  said  Lord 
EUenborough,  "of  hearsay  evidence  upon  all  occasions,  whether 
in  matters  of  public  or  private  right,  is  somewhat  of  an  anomaly.^ 
Hearsay  evidence  is  admitted  in  cases  of  pedigree,  or  prescrip- 
tive rights  and  customs,  and  some  other  cases  of  public  or  quasi 
public  nature.  In  cases  of  pedigree  it  is  admitted  upon  the 
ground  of  necessity,  of  great  difficulty,  and  sometimes  the  impos- 
sibility of  proving  remote  facts  of  this  sort  by  living  witnesses; 
but  in  these  cases  it  is  only  admitted  Avhen  the  tradition  comes 
from  persons  intimately  connected  or  in  close  relation  with  the 
family,  or  from  sources  of  a  kindred  nature,  which  in  a  general 
sense  may  be  said  to  import  verity,  there  being  no  lis  mota  or 

1  I  Starkie's  Ev.  30;   Eeed  v.  Jackson,  1  East,  357. 

^Kingv.  Enswell,  3  Term.  R.  72  L 

^  The  next  exception  is  founded  upon  the  refusal  of  the  Court  to  permit  tes- 
timony to  be  given  of  the  declarations  of  one  Kincaid,  the  surveyors  of  Remey's 
survey,  under  the  following  circumstances:  Kincaid  had  been  examined  as  a 
witness  for  the  demandants  (by  way  of  deposition),  and  the  tenants  thereupon 
n;ave  in  evidence  the  conversations  and  declarations  of  Kincaid  to  certain  wit- 
nesses in  order  to  discredit  his  (Kincaid's)  testimony,  and  to  show  that  he  had 
stated  that  the  survey  was  made  by  him  at  the  mouth  of  Raccoon  Creek  for 
Remey,  when  it  was  his  interest  to  place  it  at  Pond  Creek.  The  demandants 
then,  with  a  view  to  sustain  Kincaid  and  to  support  the  statements  going  to  his 
interest  offered  witnesses  to  prove  the  statements  and  conversations  of  Kin- 
caid at  other  times,  corresponding  with  the  statements  made  in  his  deposition, 
relative  to  his  making  the  sufveys  of  Thompson  and  Remey,  and  it  being  sug- 
gested by  the  demandants  upon  an  inquiry  from  the  Court,  these  statements  and 
conversations  were  subsequent  to  those  testified  to  by  the  tenants'  witnesses; 
the  Court,  upon  an  objection  taken  by  the  tenants,  excluded  the  evidence.  In 
our  opinion  the  evidence  was  rightly  excluded. 

Where  witness's  proof  has  been  offered  against  the  testimony  of  a  witness 
und<>r  oath,  in  order  to  impeach  his  veracity,  establishing  that  he  has  given  a 
different  account  at  another  time,  we  are  of  opinion  that  in  general  evidence  is 
not  admissible  in  order  to  confirm  his  testimony,  to  prove  that  at  other  times  he 
has  given  the  same  account  as  he  has  under  oath;  for  it  is  but  his  mere  decla- 
ration of  the  fact  and  that  is  not  evidence.  His  testimony  under  oath  is  better 
evidence  than  his  confirmatory  declarations  not  under  oath,  and  the  repetition 


174  ECCLESIASTICAL  LAW. 

other  interest  to  affect  the  credit  of  their  statements.'"  Another 
distinction  obtains  between  general  points  and  particular  facts  of 
a  private  nature.  The  former  is  received,  as  we  have  before 
shown,  but  the  latter  is  rejected ;  but  where  the  particular  fact 
is  proven  aliunde  evidence  of  general  reputation  is  sometimes  re- 
ceived to  explain  or  to  qualify  it.  Thus,  where  the  question  was 
whether  a  turnpike  was  situated  within  the  limits  of  a  certain 
town,  it  was  held  that  evidence  was  admissible  of  general  repu- 
tation to  show  that  the  boundary  of  the  town  extended  to  a  cer- 
tain close,  but  not  that  formerly  there  were  houses  where  none 
then  stood,  that  being  a  particular  fact  in  which  the  public  had 
no  interest.  The  question  of  admissibility  of  this  sort  of  evi- 
dence turns  upon  the  nature  of  the  fact  whether  it  was  of  a  pub- 
lic or  private  interest.^  Where  particular  knowledge  of  a  fact 
is  sought  to  be  brought  home  to  a  party,  evidence  of  the  gen- 
eral reputation  and  belief  of  that  fact  among  his  neighbors  is 
admissible,  as  tending  to  show  that  he  also  had  knowledge  of  it.^ 
The  principles  applicable  to  this  class  of  evidence  obviously 
includes  documentaiy  evidence,  as  well  as  oral  declarations.  If 
tlie  matters  in  controversy  are  not  susceptible  of  better  evidence, 
and  it  is  ancient  and  of  public  and  general  interest,  any  proof,  in 
the  nature  of  traditionary  declarations,  is  receivable,  M'hether 
written  or  oral ;  thus  deeds,  leases,  and  other  private  documents 
are  admitted  in  evidence  as  declaratory  of  public  matters  re- 
cited in  thcm;^  on  the  same  principle  also,  maps  and  verdicts, 
are  receivable  in  questions  of  public  interest.^  Tims  upon  a 
question  of  boundary  between  two  farms,  it  being  proved  that 
the  boundary  of  one  of  them  was  identical  Avith  that  of  a  hamlet, 


of  his  assertions  does  not  carry  his  credibility  further,  if  so  far  as  his  oath. 
We  say  in  general,  because  there  are  exceptions,  but  they  are  of  a  peculiar 
nature,  not  applicable  to  the  circumstances  of  the  present  case,  as  where  the 
testimony  is  assailed  as  a  fabrication  of  a  recent  date,  or  a  complaint  recently 
made,  for  there,  in  order  to  repel  such  imputation,  proof  of  the  antecedent  dec- 
laration of  the  party  may  be  admitted.     EUicotl  v.    Pearl,  12  Curtis,  185-186. 

1  Bowloi  V.  Young,  1:5  Ves.  M3;  Whitloclc  v.  Baker,  13  Ves.  514;  Wicks  v. 
Spark,  1  M  &  S.  fi86. 

2  1  Starkie's  Ev.  M.  ^  Brander  v.  Ferridy,  16  Louis,  R.  29G. 

*  Clark  son  v.   Woodhonse,  5   IVmui.    ■112,   :>    Doug.    189;    Taylor  v.   Cook  & 
Price,  050. 

« 1  Pliillips's  Ev.  250;  Noyes  v.  White,  19  Cal.  250. 


TESTIMONY  OF  DECEASED  WITNESSES  175 

evidence  of  reputation  as  to  the  bounds  of  the  hamlet  was  held 
admissible.^  But  an  old  map  of  a  parish  produced  from  the  par- 
ish chest,  and  which  Avas  made  under  a  private  inclosure  act,  was 
held  inadmissible  evidence  of  boundary  without  proof  of  the 
inclosure  act.^ 

CHAPTER  XL 

THE    TESTIMONY    OF    DECEASED  WITNESSES    ON   A   FORMER    TRIAL. 

The  former  testimony  of  a  deceased  witness  is  admissible  in 
another  trial  of  the  same  cause ;  nor  is  it  necessary  that  the 
former  testimony  should  have  been  given  on  the  trial  of  a  cause 
in  the  exact  technical  signification  of  the  term.  It  is  enough 
that  the  point  was  investigated  in  a  judicial  proceeding  of  any 
kind  wherein  the  party  to  be  affected  by  the  testimony  had  the 
privilege  of  cross-examining  the  deceased  witness;  thus  it  was 
held  that  Avhat  a  witness  testified  before  commissioners  appointed 
by  a  statute  to  settle  the  title  to  lands,  or  before  the  trustees  of 
an  absconed  debtor,  or  before  commissioners  legally  appointed  to 
examine  into  the  affairs  of  an  estate,  represented  insolvent,  is 
admissible  in  evidence.^      The  same  doctrine  has  recently  been 

^Thomas  v.  JenJdns,  1  N.  &  P.  588.  ^ Beg  v.  Milton,  1  C.  &  K  58. 

*  Thompson,  J.,  said:  "It  seems  to  be  well  settled,  and  indeed  is  not  denied 
by  the  plaintiff's  counsel,  that  wliere  a  person  who  gave  evidence  on  a  former 
trial  between  the  same  parties  in  the  usual  and  ordinary  course  of  proceeding  in 
■  courts  of  justice  be  dead,  upon  due  proof  of  such  trial,  and  the  death  of  the  wit- 
ness, it  is  competent  to  prove  what  such  witness  had  formerly  sworn.  1  Strange, 
162;  3  Burr.  I'.'So ;  2  Lord  Raym.  11G6;  2  P.  Wms.  56.3;  2  Shower,  47;  Lil. 
Ab.  765).  But  it  is  said  that  this  rule  ought  not  to  be  extended  to  testimony 
taken  before  the  Onondaga  commissioners.  I  am  unable,  however,  to  discover 
any  substantial  reason  for  the  distinction.  These  commissioners  were  duly  con- 
stituted a  tribunal  to  hear  and  determine  disputes  relative  to  the  very  land  in 
question,  and  to  administer  an  oath  to  witnesses.  Opportunity  was  given  for 
cross-examining  witnesses;  and  it  appears  that  the  title  now  in  question  was 
actually  litigated  before  the  commissioners.  I  understand  it  to  be  admitted  by 
the  case  that  a  trial  was  pending  at  the  time  the  witnesses  were  sworn,  and  that 
no  objection  was  made  respecting  the  mode  of  proving  that  such  trial  was  pend- 
ing. The  objection  only  went  to  the  admissibility  of  proof  as  to  what  the  wit- 
ness had  sworn.  What  a  deceased  witness  testified  on  a  former  trial  is  only  to 
be  ascertained  by  the  testimony  of  some  person  present,  who  was  under  circum- 
stances to  know  and  remember  his  evidence,  no  records  being  kept  of  what 
witnesses  swear  in  courts  of  law.     This  species  of  evidence  is  admitted  er  ueres 


176  ECCLESIASTICAL  LAW. 

applied  to  ca  proceeding  and  testimony  of  a  deceased  witness^  on 
a  caveat  against  the  proof  of  a  will  in  the  register's  court.  ^ 

But  the  admission  of  such  testimony  in  some  of  the  cases  has 
been  carefully  restricted  and  confined  to  civil  cases,  and  the  evi- 
dence of  what  a  deceased  witness  testified  on  a  former  trial  was 
held  not  admissible  in  a  criminal  cause,  whether  it  relates  to  a 
felony  or  a  mere  misdemeanor.^  Such  evidence  was  said  by  the 
judges  in  England  to  violate  a  clause  in  the  Magna  Charta  de 
manding  that  the  accused  should  be  confronted  with  the  witnesses. 
This  doctrine,  however,  that  the  testimony  of  a  deceased  witness 
is  not  admissible  in  criminal  cases  has  been  questioned,  and  it 
has  been  contended  that  the  general  rules  of  evidence  are  the 
same  both  in  civil  and  criminal  cases,  except  in  the  latter  the 

sitate,  and  must  be  left  to  the  sound  discretion  of  a  jury,  under  the  direction  of 
the  Court  to  give  it  such  weight  as  it  merits.  The  general  rule  is,  that  when  any 
matter  sworn  at  a  former  trial  is  given  in  evidence  it  must  be  between  the  same 
parties,  otherwise  no  opportunity  would  be  given  for  cross-examining  the  wit- 
ness. The  present  case  falls  strictly  within  this  rule.  But  even  the  want  of  an 
opportunity  for  cross-examination  has  not  been  deemed  sufficient  to  exclude  this 
kind  of  evidence.  For  it  has  been  ruled  that  if  witnesses  who  were  examined 
on  a  coroner's  inquest  be  dead  or  beyond  the  sea,  their  depositions  may  be  read, 
for  the  coroner  is  an  officer,  on  behalf  of  the  public,  to  make  inquiry  about  the 
matters  within  his  jurisdiction,  and,  therefore,  the  law  will  presume  the  deposi- 
tions before  him  to  be  fairly  and  impartially  taken.  (1  Lev.  180;  Buller, 
N.  P.  242.)  My  opinion,  therefore,  is,  that  the  testimony  offered  was  competent, 
and  ought  to  have  been  received,  and  that  a  new  trial  must  be  awarded,  with 
costs,  to  abide  the  event.  2  John.  19,  20;  Fiicli  v.  Hyde;  Kirby,  258;  For- 
neij  v.  Gallagher,  11  Serg.  &  Rawle,  20:^). 

^  Per  Curiam.  The  deposition  of  Joseph  Sears  was  taken  on  the  IRth  of 
August,  1801),  and  when  it  was  offered  to  be  read  before  the  referees  in  Decem- 
ber, 1809,  he  was  dead.  This  deposition  was  taken  by  the  trustees  when  Sears 
was  examined  by  them  on  the  claim  of  Cox,  and  the  Statute  says  (Laws,  Vol.  i, 
p.  2-10),  "That  the  trustees,  or  any  two  of  them,  are  competent  to  settle  all  mat- 
ters and  accounts  between  the  debtor  and  his  creditors,  and  to  examine  any  per- 
son on  oath  concerning  the  same,  which  oath  may  be  administered  by  any  of 
said  trustees,  two  of  them  l)eing  present."  In  this  examination  the  trustees  act 
as  the  official  agents  of  both  parties,  and  under  obligations,  official  and  religious, 
to  act  impartially.  A  deposition  taken  before  them  wlien  they  were  examining 
the  witnesses  ought  to  be  road  afterwards  upon  the  death  of  the  witness,  as 
much  as  a  deposition  taken  before  a  coroner's  inquest  or  the  Onondaga  commis- 
sioners, and  it  ought  equally  to  be  admitted.     7  John.  298. 

^Ollinger  v.  Olliiif/er,  17  Serg.  &  Rawle,  LI  2;  lia>/  v.  Bush,  1  Root,  81. 

'  State  V.  Atkins,  1  Term  (by  Overton)  229;  Finn  v.  The  Commonwealih,  5 
Rand.  701-708. 


TESTIMONY  OF  DECEASED  WITNESSES.  177 

law  allows  greater  latitude  than  the  former  bj  receiving  the 
declarations  of  a  party  in  extremis;  and  as  to  the  constitutional 
objection,  that  the  accuser  and  the  accused  should  be  brought 
face  to  face,  it  is  said  that  this  is  done  b}^  having  the  deceased 
witness  on  the  former  trial  face  to  face  with  the  accused,  and  the 
witness  who  details  the  statement  face  to  face  Avith  the  accused.^ 
But  it  seems  to  us  that  the  object  of  the  constitutional  provision 
before  referred  to  is  not  satisfied  short  of  the  presence  of  the 
witness  in  a  criminal  case  before  the  court  and  jury,  or  other  tri- 
bunal, that  is  to  try  the  accused,  so  that  they  may  be  able  to 
observe  the  beai'ing  of  the  witness  upon  the  witness-stand,  his 
manner,  his  degree  of  intelligence,  and  all  the  circumstances 
which  might  tend  to  affect  his  testimony.  The  cases  all  agree 
that  in  order  to  the  admission  of  the  testimony  of  a  deceased  Avit- 
ness  on  a  former  trial  or  investigation,  the  parties  must  be  the 
same,  ^  or  at  least  they  must  be  in  privity.      Where  the  parties 

1  1  M'Naly,  390  ;  United  States  v.  Wood,  3.  Wasli.  C.  C.  R..  TIO. 
The  admission  of  the  testimony  at  the  circuit  was  put  on  the  ground  that 
the  defendants,  by  introducing  the  witness  on  the  former  trial,  had  declared  his 
competency  and  credibility,  and  thereby  precluded  themselves  from  questioning 
either.  This  was  undoubtedly  true  so  far  as  that  trial  was  concerned  (1  Phil. 
Ev.  213),  but  no  farther.  Independently  of  that  trial.  Shearer  was  not  tlie  wit 
ness  of  the  defendants,  unless  they  again  choose  to  make  him  such.  Had  he 
been  living,  and  been  introduced  by  the  plaintiff  on  the  second  trial,  it  could 
not,  for  a  moment,  be  contended  that  the  defendants  were  not  at  liberty  to  take 
any  exceptions  to  his  testimony;  and  yet,  the  argument  would  seem  to  be  pushed 
to  this  extent.  I  am  aware  a  distinction  is  taken  between  a  living  witness  and 
the  testimony  of  one  deceased;  but  I  have  already  endeavored  to  give  the  an- 
swer to  it  in  this  particular  case.  The  position  of  a  cause  at  the  circuit  some- 
times makes  it  expedient,  in  a  choice  of  evils,  for  a  party  to  risk  the  testimony 
of  a  witness  interested  against  him,  and  as  to  that  trial  he  must  abide  the  con- 
sequences; but  if  the  experiment  has  proved  that  the  choice  was  an  unwise  one, 
it  would  be  a  hard  measure  of  justice  to  say  the  witness  should  ever  after  be  not 
only  a  competent  but  a  credible  witness  in  the  cause  for  his  adver.sary,  whether 
dead  or  alive.  The  decease  of  Shearer  may  be  a  misfortune  to  the  plaintiff,  but 
that  is  no  reason  for  throwing  that  misfortune  on  the  defendants;  nor  is  the  fact 
that  plaintiff  has  once  had  the  benefit  of  the  testimony  of  an  interested  witness 
a  reason  why  it  should  be  repeated.  There  is  no  force  in  the  position  that  a 
parly  who  has  used  a  witness  interested  against  him  should  afterwards,  on  a  sec- 
ond trial,  be  estopped  from  excepting  to  him  on  the  ground  that  he  is  practicing 
a  fraud  upon  the  court.  The  rule  of  evidence  here  alluded  to  has  no  application 
to  the  case.     12  Wendell,  4G. 

^  The  rule  as  to  admitting  what  a  witness  swore  upon  a  former  trial,  is  sup- 
posed to  be  this:  That  to  render  such  testimony  admissible,  it  must  be  between 


178  ECCLESIASTICAL  LAW. 

were  tlie  same,  with  the  addition  of  one  defendant,  on  the  second 
trial  the  testimony  was  held  inadmissible;  the  same  ruling  was 

the  same  parties  and  the  point  in  issue  tlie  same,  and  the  words  of  the  witness 
must  be  given — not  what  is  supposed  to  be  the  substance  of  his  testimony.  The 
witness  must  also  be  dead  (1  Phil.  Ev.  215;  Bull.  N.  P.  2-13;  4  T.  R.  290;  U 
Mass.  Rep.  234;  4  Serg.  &  Rawle's  Rep.  203);   6  Cowen,  163. 

The  Court  refused  to  suffer  him  to  be  examined.  United  Slates  v.  Wood,  3 
Wash.  C.  C.  Rep.  440.  But  in  Pegram  v.  Isabel!,  2  Hen.  &  Munf.  193,  the  sub- 
stance of  what  a  deceased  witness  said  was  proved  and  received  without  objec- 
tion. In  a  subsequent  Virginia  case  this  is  shown  not  to  be  a  departure  from 
Lord  Kenyon's  meaning.  It  was  here  objected  that  a  juror  must  give  the  very 
words  of  the  deceased  witness,  not  the  substance  of  them.  The  objection  was 
overruled.     On  appeal,  this  decision  was  affirmed  by  all  tlie  judges  present. 

A  witness  may  use  his  notes  to  refresh  his  memory,  and  then  he  must  swear 
from  recollection,  independent  of  his  notes  [Lightner  v.  Wicke,  4  Serg.  &  Rawle, 
203,  205,  20fi).  Also  the  whole  of  the  substance  of  what  the  deceased  witness 
testified  to  must  be  given — not  a  part.  Wolf  v.  Wyeth  (11  Serg.  &  Rawle,  149, 
150,  151).  Where  the  witness  could  not  recollect  the  exact  words,  but  could 
give  the  substance,  remembered  there  was  a  cross-examination  but  not  the  ques- 
tions put,  but  thought  he  could  recallect  some  of  them  if  reminded  by  questions. 
Held  inadmissible.  The  Court  say  they  do  not  require  the  very  words,  as  is 
done  in  England,  but  allow  the  substance  to  be  given;  but  in  this  there  must  be 
no  equivocation  or  ambiguity.  Watson  v.  Gihiai/,  1 1  Serg.  &  Rawle,  337, 
338,  342. 

In  the  case  of  Cornell  v.  Green,  10  Serg.  &  Rawle,  16,  17,  one  Fisher,  coun- 
sel for  the  plaintiff,  was  offered  to  prove  what  a  deceased  witness  swore  to  on  a 
former  trial.  He  said  from  having  been  consulted  before  the  suit  was  instituted, 
and  directing  what  was  to  be  done,  and  from  what  the  deceased  witness  swore 
was  done;  from  having  frequently  recurred  to  his  notes,  and  from  conversation 
with  him  before  the  trial,  he  had  a  perfect  recollection  of  what  he  swore.  He 
was  in  the  habit  of  taking  down  the  very  words  of  the  witness,  not  the  substance, 
and  he  believed  his  notes  contained  every  word.  Without  his  notes  he  would 
not  undertake  to  state  every  word,  but  could  state  the  material  part  without  his 
notes.  He  was  permitted  to  testify.  On  error  upon  this  point  the  Court  said, 
by  Gibson,  judge,  they  could  not  see  any  reason  in  the  rule  stated  in  Phillips, 
that  the  witness  must  undertake  to  repeat  his  very  words.  The  rule,  applied  in 
that  degree  of  strictness,  would  be  useless  in  practice;  for  there  is  no  man,  be 
his  powers  of  recollection  what  they  may,  who  could,  in  one  case  picked  out  of 
ten  thousand,  be  qualified  to  give  such  evidence;  and  if  he  should  positively  un- 
dertake to  swear  to  the  very  words,  the  jury  ought,  on  that  account,  to  disbelieve 
him.  The  reason  assigned  that  the  jury  and  not  the  witness  is  to  judge  of  the 
effect,  is  more  plausible  than  sound.  The  truth  is,  that  evidence  of  what  a  de- 
ceased witness  said  being  inferior  in  its  nature  to  a  personal  examination,  is 
admissible  on  the  ground  that  better  evidence  does  Jiot  remain,  the  jury  being 
left  to  fi^'rm  their  own  judgment  of  the  accuracy  of  the  narration.  I  can  not  see 
why  the  same  necessity  which  opens  the  way  for  secondary  evidence  of  the  words 
of  a  deceased  witness  should  not  open  the  way,  also,  for  the  substance  of  his 


TESTIMONY  OF  DECEASED  WITNESSES.  179 

made  wlicre  additional  parties  plaintiff  were  added  in  the  second 
suit.^  The  doctrine  of  these  cases  is  very  strict,  for  in  both  the 
testimony  offered  Avas  to  prove  what  a  witness  swore  against  the 
parties  who  were  before  the  court  on  the  former  trial,  with  every 
facility  for  cross-examination.  The  objection  rested  on  the  sim- 
ple ground  that  the  parties  offering  the  testimony  were  the  only 
parties  who  had  been  added.  The  point  of  difference  in  the 
former  and  in  the  latter  case  was  also  the  same,  and  the  parties 
who  had  a  substantial  ground  of  objection  were  willing  to  waive 
the  objection  to  their  want  of  opportunity  for  cross-examination 
in  the  former  suit.  Notwithstanding  the  great  weight  that  the 
opinions  of  these  Courts  are  justly  entitled  to.  we  think  that  they 
have  unnecessarily  tied  up  the  receipt  of  this  kind  of  evidence  to 
a  greater  degree  of  strictness  than  appears  to  be  required  in 
respect  of  verdicts  and  judgments.^ 

This  character  of  testimony  is  admissible,  not  only  against  the 
party  in  the  former  cause,  but  against  those  who  are  privy  to 
him  either  in  estate,  in  blood,  or  in  law,  and  especially  where 
they  claim  under  him  by  a  title  derived  since  the  former  trial  or 
examination.'  But  where  two  persons  now  claim  separate  par- 
testimony  when  his  very  words  can  not  be  recollected,  or  discover  the  policy  of 
a  rule  which  should  shut  out  the  little  light  that  is  left  when  it  is  all  that  is  left, 
merely  because  it  may  not  be  sufficient  to  remove  every  thing  like  obscurity. 
Cornell  v.  Green,  10  Serg.  &  Rawle,  16,  17. 

In  Pennsylvania,  the  narrow  construction  of  Lord  Kenyon's  rule,  if  it  ever 
prevailed,  maintained  but  a  short  ascendancy.  Phil.  Ev.  Cowen  &  Hill's 
Notes,  1,  33:i 

Where  a  person  stated  he  had  intended  to  take  down  the  words  of  the  wit- 
ness and  all  that  he  deemed  material,  but  could  not  say  that  he  had  taken  his 
precise  words  or  every  word  of  the  testimony,  and  that  he  could  not  swear  to 
the  testimony  except  from  his  minutes,  held  that  such  evidence  was  admissible. 
Clark  v.Yorce,  15  Wend.  193.  If  nothing  will  answer  but  an  exact  transcript 
of  the  witness  in  his  very  words,  and  all  his  words,  it  will  exclude  all  such  tes- 
timony,    fi  Cowen,  163,  164. 

^  Boardman  v.  Heed's  Lessees,  6  Peters,  328;  Bouhereau  v.  Montgomery,  4 
Wash.  C.  C.  R.  186. 

^  Lawrence  v.  Hunt,  10  Wend.  80. 

^  If  the  verdict  in  the  former  ejectment  was  admissible  on  the  trial  of  this 
suit  by  reason  that  the  tenant  for  life  and  the  remainder  men  are  privies  in  es- 
tate, it  follows  that  the  evidence  given  in  the  first  suit  by  a  deceased  witness  is 
also  admissible.  The  rule  is,  that  such  evidence  is  proper,  not  only  when  the 
point  in  issue  is  the  same  in  a  subsequent  suit  between  the  same  parties,  but 


180  ECCLESIASTICAL  LAW. 

eels  of  land,  both  of  whicli  were  once  owned  by  a  person  from 
whom  the  two  separately  derived  title,  it  was  held  that  what  a 
deceased  witness  once  swore  upon  a  separate  ejectment  against 
one  is  not  evidence  against  tlie  other,  for  there  was  no  privity  of 
estate  between  them  in  respect  to  such  evidence.^  The  privity 
tliat  will  admit  tlie  introduction  of  this  character  of  evidence 
may  be  defined  to  be  tlie  mutual  or  successive  relationship  to  the 
same  riglit  of  property. 

It  was  formerly  held  that  the  witness  called  to  prove  the 
statement  testified  to  by  a  deceased  witness  on  a  former  trial, 
must  undertake  to  give  his  precise  words, ^  and  the  testimony, 


also  for  or  against  persons  standing  in  the  relation  of  privies  in  blood,  privies  in 
estate,  or  privies  in  law.     15  John.  .'34 H. 

^  Jackson,  ex  dem.  v.  CHssey,  .3  Wend.  25L 

^'Putnam,  Judge,  delivered  the  opinion  of  the  Court.  The  question  is  whether 
the  testimony  of  Messrs.  Adams  and  Keith,  of  what  S.  Hopkins  swore  to  before 
the  magistrate  upon  the  examination  of  the  defendant  on  the  charge  of  perjury, 
is  competent  evidence.  It  has  been  contended  for  the  defendant  that  the  ad- 
mission of  such  evidence  is  directly  against  the  twelfth  article  of  the  bill  of 
rights,  which  provides  that  in  criminal  cases  the  subject  shall  have  a  right  "to 
meet  the  ivitness  against  him  face  to  face." 

Now,  the  defendant  did  meet  the  witness,  who  has  deceased,  face  to  face, 
and  might  have  cross-examined  him  before  the  magistrate  touching  this  accusa- 
tion. Was  it  competent  for  the  witnesses,  who  testified  at  the  trial  in  the  Court 
of  Comnion  Pleas  in  the  presence  of  the  prisoner,  to  state  what  Hopkins,  who 
is  now  deceased,  did  swear  to  before  the  magistrate  in  the  presence  of  the  pris- 
oner? We  do  not  think  that  the  case  falls  within  the  constitutional  objection- 
That  provision  was  made  to  exclude  any  evidence  by  deposition  which  could  be 
given  orally  in  the  presence  of  the  accused;  but  was  not  intended  to  affect  the 
question  as  to  what  was  or  was  not  competent  evidence  to  be  given  face  to  face 
according  to  the  settled  rules  of  the  common  law.  In  trials  for  murder,  for  ex- 
ample, the  dying  declarations  of  tlie  party  as  to  the  fact  of  having  received  the 
death  wound  from  the  party  accused,  and  the  circumstances  attending,  have 
been  proved  by  persons  who  were  present  and  heard  and  could  make  oath  to 
such  declarations.  They  are  not  considered  as  hearsay  evidence,  for,  being  made 
under  the  ajiprohension  of  immediate  death,  they  are  justly  supposed  to  be  en- 
titled to  all  the  credit  which  would  be  given  to  them  if  the  declarant  made  them 
on  oath.  Such  declarations,  made  when  the  accused  was  not  present,  are  admis- 
sible in  evidence  (Peake's  Evid.  60;  Bex  v.  liadbourne,  Leach,  512),  and  were 
not  intended  to  be  excluded  or  touched  by  the  provisions  cited  from  the  bill 
of  rights. 

We  think  it  to  be  very  clear,  that  testimony  of  what  a  deceased  witness  did 
testify  on  a  former  trial  betwc^en  the  same  parties,  on  the  same  issue,  is  compe- 
tent evidence.     The  rule  is  thus  well  stated  in  2  Lilly's  Abr.  7-15:   "If  one  who 


TESTLMONY  OF  DECEASED  WITNESSES.  181 


merely,  to  tliat  effect,  was  inadmissible.      This  degree  of  strict 
ness  is  not  now  adhered  to.    A  distinction,  in  some  cases,  has  been 
drawn  between   giving  the  substance  of  the  deceased  witness's 

gave  evidence  on  a  former  trial  be  dead,  then  upon  proof  of  his  death,  any  per- 
son who  heard  hirn  give  evidence  and  observed  it,  shall  be  admitted  to  give  the 
same  evidence  as  the  deceased  witness  gave ;  provided  it  were  between  the  same 
parties."  I  cite  the  passage  for  the  expression,  "shall  be  permitted  to  give  the 
same  evidence'''  which  the  deceased  gave.  It  is  to  be  the  same — not  a  part,  not 
the  effect  or  substance,  but  the  whole  evidence  which  the  deceased  gave  touch- 
ing the  matter  or  issue  in  controversy.  1  Phil.  Evid.  c.  7,  §  1 -,9  Miles  v.  0' Ham, 
4  Binney  111;  Pyke  v.  Crouch,  1  Ld.  Raym.  780;  Melvin  v.  Whiting,  7  Pick. 
79;  Bull.  N.  P.  242,  et  seq.  In  Finn  v.  Comwonwealth^  5  Randolph,  708,  the 
Court  confined  this  rule  of  evidence  to  civil  causes;  "we  can  not  find  the  rule 
has  ever  been  allowed  in  a  criminal  case."  But  the  rules  of  evidence  in  civil 
and  in  criminal  cases  are  generally  the  same,  and  this  rule  was  recognized  in 
the  information  against  Bucku'orth  (T.  Raymond,  170),  for  perjurv  in  a  case  of 
ejectment.  The  defendants  pleaded  not  guilty,  and  to  prove  the  perjury  a  wit- 
ness was  produced  to  prove  what  one  who  had  since  died  swore  upon  the  first 
trial.  Keyling,  Chief-Justice,  would  not  allow  it  because  the  former  trial  was 
betwixt  other  parties.  Twisden  and  Morton,  contra,  and  it  was  allowed.  Now, 
Keyling  did  not  contend  that  such  evidence  was  not  competent  if  it  were  between 
the  same  parties.  Vid.  S.  C.  1  Sid.  377,  where  the  particular  evidence  given  by 
the  defendaTit  is  set  forth. 

It  is  stated  in  Gilb.  Evid.  88!',  that  excejitions  to  the  rules  as  to  hearsay  evi- 
dence applicable  to  ancient  customs  do  not  apply  to  criminal  cases;  but  in  the 
case  of  the  United  States  y.Wood,  8  Wash.  C.  C.  R.  440,  for  robbing  the  mail, 
such  evidence  is  held  to  be  admissible.  Bache  was  allowed  to  testify  what  Hare 
swore  to  at  a  former  trial,  but  he  could  not  do  it.  He  could  swear  to  what  he 
thought  was  the  substance  and  effect  of  it.  He  was  allowed  to  refresh  his  recol- 
lection by  reference  to  the  minutes  which  he  had  taken  at  the  time,  but  he  wns 
rejected  because  he  could  not  say  that  he  recollected  the  words  of  Hare,  although 
he  felt  the  most  entire  confidence  that  he  had  taken  them  as  the  witness  uttered 
them.  Now  this  was  right;  for  unless  he  could  give  the  words,  how  can  it  be 
said  to  be  the  same  evidence  that  the  deceased  witness  gave?  It  is  the  mere  in- 
ference, but  the  jury  should  draw  the  inference  from  the  words  which  the  de- 
ceased witness  used.  So  in  Bex  v.  JoUiffe,  4  T.  R.  290,  a  witness  was  called  to 
prove  what  Lord  Palmerston  had  sworn  to  at  a  former  trial,  and  was  rejected 
because  he  would  not  undertake  to  give  the  very  words,  but  merely  their  effect 
or  substance.  But  the  whole  of  what  the  deceased  witness  said  should  be  proved. 
Some  part  of  which  was  said  and  not  recollected  might  certainly  limit  and  qualify 
the  meaning  of  the  words  which  are  recollected.  Hence  it  is  that  persons  who 
are  in  hearing,  who  are  favorably  inclined  to  one  partv,  may  recollect  a  particu- 
lar expression  which  conformed  to  their  wishes,  and  wholly  omit  the  words  of 
qualification,  while  others,  who  inclined  towards  the  other  side,  will  remember 
the  words  of  qualification  and  forget  or  take  no  notice  of  the  particular  expres- 
sion.   We  see  this  exemplified  very  frequently  in  trials  before  juries.    How  com- 

13 


182  ECCLESIASTICAL  LAW. 


language  and  the  substance  of  liis  testimony,  holding  tliat  it  ia 
sufficient  if  the  witness  is  able  to  state  the  language  of  the  de- 
ceased witness  substantially  and  in  all  material  particulars.  The 
distinction  between  the  substance  of  the  language  and  the  sub- 
stance of  the  testimony  is  certainly  shadowy,  and  to  hold  that  the 
witness  must  give  the  precise  words  used  by  the  deceased  witness 
is,  in  effect,  to  exclude  this  character  of  evidence  altogether ;  for 

mon  it  is  for  the  counsel  engag-ed  in  the  cause  to  disagree  as  to  what  the  witness 
lias  sworn  to  recently.  One  notes  down  upon  paper  or  treasures  up  in  his  mind 
what  he  considers  to  be  favorable  and  disregards  the  rest,  while  the  other  recol- 
lects the  rest  with  great  clearness.  And  it  is  not  unusual  that  the  Court  under- 
stood the  witness  to  state  the  matter  differently  from  what  the  counsel  on  either 
side  suppose  was  the  evidence.  The  difficulty  is  increased  by  the  length  of  time 
which  has  elapsed  between  the  time  when  the  testimony  of  the  deceased  witness 
was  given  and  the  statement  of  it  by  the  living  witness  who  heard  it.  'To  be 
worth  any  thing,  the  whole  of  what  the  deceased  witness  said  upon  the  matter 
should  be  slated,  and  if  you  get  the  whole  it  is  very  defective,  for  you  can  not 
have  a  true  representation  of  the  countenance,  manner,  and  expression  of  the 
deceased  witness,  which  either  confirmed  or  denied  the  truth  of  the  testimony. 
The  false  witness  can  not  endure  the  stings  of  his  wounded  conscience;  his-coun- 
tenance  and  his  deportment  will,  in  spite  of  his  endeavors  to  the  contrary,  by  signs 
as  clear  and  intelligible  as  they  are  inexpressible,  declare  that  the  story  which  he 
has  just  sworn  to  is  a  lie. 

These  considerations  induce  us  to  require  fall  proof  of  all  that  the  deceased 
witness  swore  to.  His  words,  and  not  the  .synonymous  words  of  him  who  states 
his  testimony,  are  to  be  recited.  In  Wilbur  v.  Sehvin,  6  Cowen,  162,  the  Court 
lield  that  the  words  of  the  deceased  witness  should  be  given,  and  not  the  sub- 
stance of  them.  It  is  true  that  this  strictness  will  generally  exclude  such  testi- 
mony; for  if  the  evidence  of  a  deceased  witness  was  minute  and  protracted,  and 
related  to  a  transaction  which  was  of  a  complicated  character,  it  would  seem  to 
be  almost  incredible  that  any  person  could,  with  certainty,  recite  it.  If  he  un- 
dertook to  do  it,  it  is  very  likely  he  would  lose  as  much  in  credit  as  he  should 
assume  in  positivencss.  If  the  evidence  related  to  a  single  fact — for  example, 
whether  the  witness  did  or  did  not  see  A.  B.  sign  such  a  note — the  answer  might 
well  be  recollected 

To  apply  this  reasoning  and  the  authorities  which  are  cited  at  the  bar  to  the 
case  under  consideration,  we  think  it  to  be  very  clear  that  there  was  not  legal 
and  sufficient  evidence  given  by  Mr.  Adams  or  by  Mr.  Keith  of  what  Hoplcins, 
the  deceased  witness,  swore  to.  They  say  they  can  not  give  the  exact  words, 
but  their  substance  from  recollection,  aided  by  notes  of  his  testimony  taken  at 
the  trial.  And  this  sort  of  evidence  was  rejected  by  the  Circuit  Court  of  the 
United  States  in  the  case  of  the  United  States  v.  Wood,  before  cited.  The  case 
at  bar  is  not  certainly  more  favorable  for  the  government  than  that  was.  The 
result  follows  that  the  verdict  must  be  set  aside  and  a  new  trial  be  had  at  the 
bar  of  the  Court  of  Common  Pleas  for  this  county.      18  Pick.  43(!. 


TESTIMONY  OF  DECEASED  WITNESSES.  183 

no  honest  witness  would  venture  to  detail  the  testimony  given  by 
a  deceased  witness  on  a  former  trial  if  he  was  compelled  to  state 
it  in  the  exact  lan<^uage  of  tlie  witness.  The  infirmity  of  the 
human  memory  would  not  justify  any  such  an  assumption,  and  it 
is  now  well  settled  that  the  substance  of  what  a  witness  testified 
on  a  former  trial,  even  in  proof  of  the  crime  of  perjury,  is 
sufficient.^ 

From  what  we  have  already  said  it  is  apparent  that  to  entitle 
a  party  to  give  evidence  of  the  testimony  of  a  deceased  witness 
on  a  former  trial,  it  must  be  shown  by  ancillary  proof  that  the 
witness  is  dead,  ^  and  it  is  not  sufficient  that  he  be  absent  in  an- 


^  Rex  V.  Roioley,  1  Mood.  Cr.  Cases,  111;  Cornell  v.  Gi'een,  10  Sercr.  &  Rawle, 
14-16;  3Iiles  v.  O Hara,  4  Binn.  108;  2  Russ.  on  Crimes,  3d.  Am.  Ed.  638-683; 
Sloane  v.  Sumner,  1  Spencer  R.  66;  Garrett  v.  Johnson,  11  Gill.  &  John.  28; 
Van  Bnren  v.  Cochburn,  14  Barb.  118  ;  Jones  v.  Wood,  16  Penn.  St.  25  ;  Davis  v. 
The  State,  1 7  Ala.  354. 

^  What  one  swore  on  a  former  trial  can  not  be  given  in  evidence,  unless  he 
be  dead.  That  he  is  beyond  the  reach  of  process  of  subpoena,  and  can  not  be 
found  on  diligent  inquiry  will  not  render  such  proof  admissible.  Wilbur  v. 
Selden,  6  Cowen,  162. 

Spencer,  C.  J.,  delivered  the  opinion  of  the  Court,  and  said:  "The  material 
points  in  the  cause  are,  Whether  the  note  in  question  was  fraudulently  put  into 
circulation?  Whether  the  plaintiffs  are  bonajide  holders  of  it?  And  whether 
the  confession  of  one  of  the  plaintiffs,  that  the  note  was  usuriously  discounted, 
was  admissible  in  evidence?  There  is  no  force  In  the  objections,  that  the  indul- 
gence, granted  by  the  plaintiffs  to  Wood,  discharged  the  defendant,  or  as  to  the 
overruling  the  proof  of  what  a  witness  had  sworn  on  a  former  trial,  as  to  usury 
in  the  transaction.  It  is  decisive  as  to  these  points,  that  mere  delay  to  sue  does 
not  affect  the  rights  of  the  creditor,  even  against  a  surety;  and  that  to  entitle  a 
party  to  give  in  evidence  the  testimony  of  a  witness  on  a  former  trial,  it  must 
be  shown  that  the  witness  is  dead ;  and  this  was  not  shown  or  pretended. 

"  The  note  in  question  was  the  renewal  of  one  which  had  been  drawn  by 
Wood,  and  indorsed  by  the  defendant.  The  first  note  was  intended  to  be  dis- 
counted at  the  Newburg  Bank,  but  was  discounted  by  the  plaintiffs;  and  it 
appeared  by  the  testimony  of  Smith,  an  indorser  of  the  note  subsequent  to  the 
defendant's  indorsement,  that  the  present  was  delivered  to  him  by  Wood, 
indorsed  by  the  defendant  without  any  directions  or  instructions  from  either  in 
what  manner  he  was  to  negotiate  it,  though  it  was  well  understood  by  Wood 
and  the  defendant  that  with  the  avails  he  was  to  take  up  the  original  note. 
Independently  of  the  question  of  usury  there  is  nothing  in  the  objection;  the 
first  note  was  made  and  indorsed  to  raise  money  on,  and  it  was  entirely  imma- 
terial whether  it  was  discounted  at  Bank  of  Newburg  or  elsewhere.  It  did  not 
alter  or  increase  the  responsibility  of  the  indorser;  the  money  to  be  raised  was 
intended  to  be  for  the  benefit  of  Wood,  and  he  did  receive  the  money  for  which 


184  "  ECCLESIASTICAL  LAW, 


Other  State,  although  some  of  the  authorities  hold  that  evidence 
of  this  character  may  be  given  where  the  witness  is  dead,  insane, 
or  beyond  sea,  and  where  he  has  been  kept  away  by  the  con- 


the  first  note  was  discounted.  If  the  plaintiffs  knew  when  they  received  the 
note  that  it  was  intended  to  be  discounted  at  the  Bank  of  Newburg,  and  had 
been  refused,  it  would  not  affect  them  or  establish  any  fraud. 

"Smith,  the  second  indorser  of  the  note,  and  the  person  who  had  procured 
the  plaintiffs  to  discount  the  first  note,  and  had  negotiated  the  note  in  question 
to  them  to  take  up  the  first  note,  was  asked  whether  Jacob  Powell,  one  of  the 
plaintiffs,  had  not  since  the  note  was  discounted  admitted  to  him  that  it  was 
usuriouslv  discounted.  This  question  was  objected  to  by  the  plaintiff's  counsel 
and  overruled. 

"The  situation  in  which  Smith  stood  did  not  incapacitate  him  from  testifying 
to  that  fact.  He  was  not  asked  any  question  involving  his  own  turpitude,  as 
whether  the  note  which  he  passed  as  a  good  and  available  note  was  void  within 
his  knowledge,  when  he  offered  it  to  the  plaintiffs ;  and  that  I  consider  to  be  the 
precise  point  on  which  a  majority  of  this  Court,  in  Winton  v.  Saidler,  3  John's. 
Cas.  185,  rejected  the  testimony  of  an  indorser.  The  reasoning  of  Mr.  Justice 
Thompson,  who  delivered  an  opinion  on  that  side  of  the  question,  proceeds  on 
the  maxim  that  jiemo  allegans  suam  iurpitudwem  est  audiendns ;  he  considered 
it  as  contrary  to  sound  policy  and  morality  that  a  party  to  a  negotiable  note 
should  be  admitted  as  a  witness  to  invalidate  it;  meaning,  undoubtedly,  to  be 
understood  that  a  person  whose  name  was  on  a  negotiable  paper,  and  who  had 
thereby  contributed  to  its  circulation,  should  not  be  heard  to  say  that  the  paper  thus 
sanctioned  by  his  name  was  tainted  when  it  passed  from  his  hands.  But,  if  it 
receives  its  taint  when  it  is  negotiated  to  the  party  plaintiff  by  the  facts  then 
happening,  it  is  not  contrary  to  public  policy  or  morality;  nor  would  it  come 
within  the  principle  of  the  decision  of  Winton  and  Saidler  to  hear  the  witness 
as  to  such  facts  if  there  were  no  other  objections  to  his  testifying.  If  the  plain- 
tiffs discounted  the  first  note  upon  a  usurious  consideration,  and  the  note  in 
question  was  a  mere  substitute  for  that  note,  they  are  not  entitled  to  object  to 
the  evidence  that  they  themselves  were  guilty  of  usury,  because  Smith,  whose 
name  was  on  the  note,  was  the  agent  of  Wood  in  making  the  usurious  bargain. 
The  principle  in  Winton  and  Saidler  was  intended  as  a  protection  for  the  fair 
and  bonajide  holders  of  a  negotiable  note  or  bill  against  any  prior  transaction 
which  had  already  invalidated  the  paper  so  far  as  regarded  any  person  who 
had,  by  indorsing  the  paper,  or  putting  his  name  to  it  as  a  party  from 
being  a  witness  to  impeach  it.  The  case  of  Skelding  v.  Warren^  15  Johns. 
Rep.  275,  is  in  point  to  show  that  a  party  whose  name  is  on  a  negotiable 
paper,  may  be  permitted  to  testify  as  to  any  facts  which  arise  subsequent  to 
the  signature  of  the  witness.  Upon  authority,  then.  Smith  was  a  good  wit- 
ness to  prove  the  usury  by  the  plaintiffs  in  their  acquisition  of  the  note. 

"It  may,  however,  be  urged  that  the  purchase  of  the  note  by  the  plaintiffs 
at  such  a  discount  as  wo\ild  amount  to  usury  in  case  the  note  was  originally 
intended  to  be  sold  to  them,  is  not  under  the  circumstances  usurious,  and  in  face 
that  it  was  the  mere  purchase  of  the  note  at  a  less  sum  than  its  face.     The  cast 


DECLARATIONS  OF  AGENTS  185 

trivance  of  the  other  party.'  Where  the  witness  has  gone,  and 
his  place  of  residence  can  not  be  ascertained  by  diUgent  inquiry, 
it  would  seem  that  his  former  testimony  ought  to  be  admitted. 
If  he  is  merely  out  of  the  jurisdiction  of  the  Court,  and  his  resi- 
dence is  known,  and  his  testimony  can  be  obtained  on  a  dedimus 
or  commission,  what  he  testified  on  a  former  trial  ought  not  to 
be  received. 

CHAPTER  XII. 

DECLARATIONS   OF   AGENTS. 

Another  apparent  exception  to  the  rule  excluding  hearsay 
declarations  arises  in  regard  to  the  declarations  and  admissions 
of  agents.  It  can  hardly  be  so  regarded,  however,  where  the 
principal  constitutes  the  agent  his  representative  in  the  trans- 
action of  business.  What  the  agent  does  in  the  lawful  prosecu- 
tion of  that  business,  and  within  the  scope  of  his  authority,  is  in 

o{  Munn  v.  The  Commission  Company,  15  Johns.  Rep.  55,  settles  this  point. 
It  is  there  said  that  if  a  bill  or  note  be  made  for  the  purpose  of  raising  money 
and  it  is  discounted  at  a  higher  premium  than  the  legal  rate  of  interest,  and  none 
of  the  parties  whose  names  are  on  it  can,  as  between  themselves,  maintain  a 
suit  on  the  bill,  when  it  becomes  mature,  provided  it  had  not  been  discounted, 
that  then  such  discounting  the  bill  would  be  usurious,  and  the  bill  would  be 
void.  In  the  present  case  the  note  was  indorsed  for  the  accommodation  of 
Wood,  and  it  was  not  an  available  paper  in  the  hands  of  either  the  payer  or 
indorser  until  it  had  been  negotiated  to  the  plaintififs,  and  the  transaction,  there- 
fore, would  be  usurious  if  the  plaintiffs  purchased  the  note  at  a  less  sum  than  its 
nominal  amount,  deducting  the  interest  for  the  time  the  note  had  to  run. 

"It  certainly  was  an  extraordinary  question  which  was  put  to  the  witness, 
whether  one  of  the  plaintiffs  had  not  admitted  to  him  since  the  note  was  dis- 
counted that  it  was  usuriously  discounted  ;  for  Smith  being  the  person  who 
transacted  the  business  would  himself  know  the  fact.  Still,  however,  I  perceive 
nothing  improper  in  the  question;  his  answer  may  have  shown  the  relevancy  and 
propriety  of  the  inquiry;  and  it  is  not  to  be  supposed  that  the  question  would 
have  been  entirely  overruled,  but  under  the  idea  that  Smith,  being  an  indorser, 
would  not  be  permitted  to  testify  at  all  to  the  usury.  Had  not  that  idea  pre- 
vailed, the  question  would  have  been  so  shaped  by  the  judge,  as  to  elicit  all  that 
the  witness  knew  on  the  subject.  We  therefore  grant  the  motion  for  a  new  trial, 
with  costs,  to  abide  the  event  of  the  suit."  Poioell  v.  Waters,  17  John.  179; 
Weeks  v.  Loicerre,  8  Barb.  532. 

^  Moore  v.  Pearson,,  6  Watts.  &  Sarg.  51;  Magill  v.  Coffman,  4  Serg.  & 
Rawle,  ?.17;  Kobley.  Martin,  7  Martin,  282,  N.  S. ;  Miller  v.  Russell,  7  Mar- 
tin, 2GG,  N.  S. 


186  ECCLESIASTICAL  LAW. 

contemplation  of  law  the  act  of  the  principal;  and  wherever  the 
act  of  the  agent  will  bind  the  principal,  tliere  his  representations, 
declarations,  and  admissions  respecting  the  snbject  matter  will 
also  bind  liim.  If  made  at  the  same  time,  and  constituting  a  part 
of  the  res  gestce,  such  declarations  and  admissions  are  original 
evidence,  and  not  hearsay  ;  they  often  become  the  ultimate  fact 
to  be  proved,  and  not  an  admission  of  some  other  fact.  The  dis- 
tinction between  such  acts  as  constitute  a  part  of  the  res  gesf(S  and 
such  admissions  and  declarations  as  are  only  narratives  of  past 
acts,  transactions,  admissions,  or  declarations,  is  fully  recognized 
and  firmly  established.  The  admissibility  of  the  declarations  of 
agents  is  founded  upon  the  f;ict  that  they  constitute  a  part  of  the 
body  of  the  transaction,  and  are  as  much  admissible  in  evidence 
as  the  proof  of  the  act  itself.  But  this  rule  does  not  extend  to 
declarations  made  by  the  agent  after  his  agency  has  ceased. 
Where  the  declarations  or  admissions  of  the  agent,  made  in  re- 
gard to  a  transaction  that  had  already  passed,  but  while  his 
agency  for  similar  objects  still  continues,  it  was  held  that  they 
were  not  admissible.^ 

^  Haven  v.  Broicn,  1  Greenlf.  421-424;    Oily  Bank  of  Baltimore  y.  Bateman, 
1  Har.  &  John.  114. 

I  see  no  legal  objection  in  point  of  competency  to  any  part  of  this  evidence. 
If  Teller  was  the  authorized  agent  of  the  plaintiff  for  the  purpose  of  receiving 
his  share  of  the  money  (and  it  is  only  upon  this  supposition  that  proof  of  pay- 
ment to  the  former  is  admissible  at  all),  then  his  receipts  or  drafts  for  the  money, 
or  his  admissions  that  it  has  been  paid,  are  competent  evidence  of  that  fact. 
The  agent  in  such  a  case  need  not  be  called  personally  to  prove  the  payment, 
but  it  may  be  established  by  other  evidence.  I  am  not  aware  that  this  position 
has  ever  been  questioned  where  the  receipt  is  given  or  admission  made  at  the 
time  of  the  payment  of  the  money  or  delivery  of  the  goods  or  other  thing  which 
the  evidence  is  designed  to  establish.  So  where  an  agency  is  established,  what 
the  agent  says  or  does  in  making  a  contract  becomes  a  part  of  the  contract,  or 
res  gestce,  and  is  admissible  in  evidence  against  the  principal.  (3  T.  R.  454;  7 
id.  6G5;  1  Esp.  Rep.  375;  4  Taunt.  511,  5G5,  GG3  ;  10  Ves.  128;  10  John.  44; 
5  Esp.  Rep.  74,  135;  2  id.  511,  note;  2  Campb.  Rep.  555;  1  Phil.  Ev.  77;  2 
Wlieat.  380.)  In  this  case  we  are  to  presume  that  it  would  have  appeared  from  the 
receipts  and  drafts  themselves,  or  been  otherwise  shown,  that  they  related  to  the 
fund  in  question.  The  account  I  understand  to  have  been  offered  in  connection 
with  the  drafts  and  receipts,  and  not  as  an  iii(loi)endent  piece  of  evidence,  and 
that  the  admission  of  a  balance  due  to  the  defendant  was  made  at  the  time  of 
the  settlement  of  the  account.  They  all  related  to,  and  were  parts  of,  the  res 
gestre  to  which  the  agency  of  Teller  extended.  This  evidence,  therefore,  I  think 
ought  to  have  been  submitted  to  the  jury.     It  was  competent,  but  not  conclusive, 


I 
I 


DECLARATIONS  OF  AGENTS.  187 

The  rule,  atlinitttiiig  the  declarations  of  the  ag-ent  as  against 
the  principal  is  founded  upon  the  legal  identity  of  the  one  with 


against  the  plaintiff.  He  might  have  impeached  it  by  showing  eitlier  fraud  or 
mistake  on  the  part  of  Teller  in  making  the  settlement.  What  weight  the  evi- 
dence wa.s  entitled  to  with  the  jury  is  an  entirely  distinct  question.  Thallhimer 
V.  Brinckerlioff,  6  Cowen,  99. 

Per  Curiam. — The  principal  point  in  this  case  is  whether  the  declarations 
of  Mrs.  Fenner  relative  to  the  delivery  of  the  horses  were  comjietent  evidence. 
By  the  articles  containing  the  covenant  on  which  the  suit  is  brought,  the  plaintiff 
and  his  wife  agreed  to  a  separsition,  and  the  defendant  became  a  party  to  the 
agreement  as  her  trustee.  Provision  was  made  for  her  maintenance  and  enjoy- 
ment of  separate  property.  She  was  to  live  thereafter  asjeme  sole,  and  was  to 
receive  from  the  plaintiff  "  for  her  separate  use  the  coachee  and  horses  which  he 
had  lately  purchased.'  Both  parties  by  the  covenant  concurred  in  her  capiicity 
to  receive  these  article,  and  she  became,  for  that  purpose,  their  mutual  agent. 
Her  declaration  or  confession  tliat  the  act  was  done  became  legal  evidence  of 
that  fact  aa  a  necessary  consequence  of  her  authority  under  the  articles  to  re- 
ceive the  coachee  and  horses;  for  no  principle  would  seem  to  be  more  clear  than 
that  the  person  to  whom  performance  of  an  act  is  agreed  to  be  made  is  compe- 
tent to  acknowledge  such  performance.  If  she  was  competent  to  receive,  she 
was  competent  to  give  a  receipt  for  them ;  and  if  her  receipt  would  have  been 
good  evidence  of  the  delivery,  her  parol  admission  must  be  equally  so.  The 
marriage  union  had,  by  the  articles  of  separation,  essentially  ceased,  and  the 
law  would  so  far  recognize  such  a  separation  as  not  to  hold  the  husband  any 
longer  hable  for  her  support.  Baker  v.  Barney,  8  Johns.  Rep.  72.  The  policy 
of  the  rule  excluding  husband  and  wife  from  being  witnesses  for  or  against  each 
other  is  founded,  according  to  one  opinion  (Lord  Kenyon,  in  o  Term  Rep.  078), 
on  the  supposed  bias  arising  from  the  marriage  ;  and  according  to  another  opin- 
ion (Lord  Harwicke,  in  Baker  v.  Dixie,  Cases  temp.  Hardw,  252),  on  the  neces- 
sity of  preserving  the  peace  of  families.  Neither  of  these  reasons  for  the  rule 
any  longer  ajiplied  here,  and  though  the  rule  may  still  exist  in  the  case  to  some 
purposes,  it  ought  very  readily  to  be  made  to  yield  to  those  cases  which  are  ex- 
ceptions to  its  application.  Thus  a  wife's  declaration  of  what  she  agreed  to  give 
a  nurse  was  received  as  good  evidence  to  charge  the  husband,  because  she  was 
his  agent  in  hiring  the  nurse.  Anon.  Stra.  527.  So  where  the  husband  permits 
her  to  act  for  him  in  any  particular  business  he  adopts  and  is  bound  by  her  acts 
and  admissions,  and  they  may  be  given  in  evidence  against  him.  Emerson  v. 
Blanden,  1  Esp.  Rep.  142.  The  defendant  here  agreed  to  be  bound  by  her  act 
in  receiving  the  horses,  and,  of  course,  he  is  bound  by  her  admission  of  the  act: 
and  the  plaintiff  has  as  good  a  right  to  avail  himself  of  her  confession  as  he 
would  have  of  her  receipt.  If  her  act  or  admission  be  good  in  one  case  to 
charge  the  husband  in  favor  of  a  third  person  because  she  was  his  agent,  the 
rule  ought  equally  to  apply  in  favor  of  the  husband  when  he  and  a  third  person 
by  the  contract  between  them  have  mutually  referred  to  an  act  in  whieli  she  was 
to  be  a  party.  Fenner  v.  Lewis,  10  John.  43;  Baring  v.  Clark,  19  Pick.  220; 
Burnham  v.  Ellis,  89  Maine,  819. 


188  ECCLESIASTICAL  LAW. 

the  other,  and,  therefore,  they  bind  only  so  far  as  there  is  author- 
ity to  make  theui.  Thus,  where  the  cashier  of  a  bank,  being 
inquired  of  by  the  security  upon  a  note,  said  that  the  note  had 
been  paid,  and  upon  the  faith  of  such  representation  the  security 
released  the  property  which  he  held  to  indemnify  himself  for  lia- 
bility upon  the  note,  and  it  appeared  that  the  note  had  not  been 
paid,  it  was  held  that  the  statement  of  the  cashier  was  not 
within  his  authority,  and  was  inadmissible  against  the  bank.' 
Where  the  agency  is  conferi'ed  by  written  instrument,  the  nature 
and  extent  of  tlie  authority  must  be  ascertained  from  the  instru- 
ment itself,  and  it  can  not  be  enlarged  or  varied  by  parol  evi- 
dence ;  for  that  would  be  to  contradict  or  to  vary  the  terms  of 
the  written  instrument.  In  connection  with  this  doctrine,  it  may 
be  stated  that  an  implied  authority  can  not  in  general  take  place 
where  there  is  an  express  authority  in  writing;  for  the  maxim 
is,  expressum  facit  cessare  taciturn.  But  we  must  be  careful  in 
the  statement  of  this  doctrine  to  confine  it  within  proper  limits, 
for  otherwise  one  may  be  misled.  The  usage  of  a  particular 
trade  or  business  or  of  a  particular  class  of  agents  is  properly 
admissible,  not  for  the  purpose  of  enlarging  the  powers  of  the 
agent,  but  for  the  purpose  of  putting  a  construction  upon  those 
powers,  that  are  actually  conferred  by  the  written  instrument ; 
for  the  means  ordinarily  used  to  execute  the  authority  is  in- 
cluded in  the  power,  and  may  be  resorted  to  by  the  agent. 
Thus,  if  an  agent  is  authorized  to  sell  goods,  it  is  competent  to 
show,  by  parol  evidence,  notwithstanding  his  authority  may  be 
in  writing,  where  the  written  authority  is  silent  upon  the  subject, 
by  custom,  that  such  agent  was  authorized  to  sell  upon  credit,  as 
well  as  for  cash;  for  it  is  prcsuu)ed  that  the  principal  intended 
to  clothe  his  agent  with  the  power  of  resorting  to  all  the  cus- 
tomary means  to  accomplish  the  sale,  unless  he  expressly  re- 
stricts him."      The  })rincipal  is  })resumed  to  authorize  his  agent 


1  Bank  v.  Stewart,  .S7  Maine,  T)!!);   Bank  v.  2'en  Et/ck,  4  Zabr.  756. 

2  Scott  V.  Siirnian,  WWha' a  U.  10"  ;  lloiuiUun  v.  Mathews,  3  Bos.  &  Pull.  489. 
Lord  EUoiiboi-ough,  C.  J.,  said :  "  There  are  two  subjects  of  coiisiderallons— 

the  bill  of  ladini,'  for  tlie  porlc,  and  that  for  the  beef.  First  as  to  the  pork,  as 
there  was  no  consideration  paid  fur  that  bill  of  lading  by  the  defendants,  they 
not  havinjr  in  fact  made  any  advance  upon  it,  as  they  bad  enj^aged  to  do,  and 
upon   the   faith  iif  wliicli   it  was  agre(;d   to  be    deposited   with   them,  there  was 


DECLARATIONS  OF  AGENTS.  189 

to  sell  or  transact  other  business  in  the  usual  manner,  and  only  in 
the  usual  manner;  therefore,  a  general  agent  for  selling  has  no 
implied  authority  to  bind  his  principal  by  a  warrantee,  unless 


nothinor  to  divest  the  original  right,  subsisting  in  the  consignors  to  stop  the 
goods  ill  ii'ansiiu,  upon  the  insolvencj'  of  the  consignee,  who  reniulned  debtor 
for  them.  Then,  as  to  the  beef:  I  should  be  very  sorry  if  any  thing  fell  from 
the  Court  which  weakened  the  authority  of  Liclcharroio  v.  Mason,  as  to  the 
right  of  a  vendee  to  pass  the  property  of  goods  in  transitu  by  indorsement 
of  the  bill  of  lading  to  a  bona  fide  holder  for  a  valuable  consideration,  and 
without  notice  for;  as  to  Wright  v.  Camphell,  though  that  was  the  case  of 
an  indorsement  of  a  factor,  it  was  an  outright  assignment  of  the  property  for 
value.  Scott,  the  indorsee,  was  to  sell  the  goods  and  indemnify  himself  out  of 
the  produce  the  amount  of  the  debt  for  which  he  had  made  himself  answerable. 
The  factor  at  least  purported  to  make  a  sale  of  the  goods  transferred  by  the 
bill  of  lading,  and  not  a  pledge.  Now  this  was  a  direct  pledge  of  the  bill  of 
lading,  and  not  intended  by  the  parties  as  a  sale.  A  bill  of  lading,  indeed,  shall 
pass  the  property  upon  a  bona  fide  indorsement  and  deliverv,  where  it  is 
intended  so  to  operate,  in  the  same  manner  as  a  direct  delivery  of  the  goods 
themselves  would  do,  if  so  intended,  but  it  can  not  operate  further.  Now  if 
the  factor  had  been  in  possession  of  the  goods  themselves,  and  had  purported  to 
sell  them  to  the  defendants  bona  fide,  the  property  would  have  passed  by  the 
delivery;  but  not  if  he  had  only  meant  to  pledge  them,  because  it  is  beyond  the 
scope  of  a  factor's  authority  to  pledge  the  goods  of  his  principal.  The  symbol 
then  shall  not  have  a  greater  operation  to  enable  him  to  defraud  his  principal 
tlian  the  actual  possession  of  that  which  it  represents.  The  principal  who  trusts 
his  factor  with  the  power  to  sell  absolutely,  shall,  so  far,  be  bound  by  his  act; 
but  the  defendants  shall  not  extend  the  factor's  act  beyond  what  was  intended 
at  the  time,  and  here  only  a  pledge  was  intended,  which  he  had  no  autlioritv  to 
make.  I  consider  the  indorsement  of  a  bill  of  lading,  apart  from  all  fraud,  as 
giving  the  indorsee  an  irrevocable,  uncountermandable  right  to  receive  the 
goods,  that  is,  where  it  is-meant  to  be  dealt  with  as  an  assignment  of  the  prop- 
erty in  the  goods,  but  not  where  it  is  only  meant  as  a  deposit  by  one  who  had 
no  authority  to  do  so;  and  having  been  dealt  with,  in  this  case,  only  as  a  deposit, 
it  can  not  be  made  into  a  sale  in  order  to  give  it  effect."  Keivsoni  v.  Thornton, 
6  East,  40. 

Per  Curiam.  The  testimony  In  the  case  does  not  warrant  the  ground  taken 
at  the  trial;  that  there  was  a  sale  of  the  wheat  to  three  of  the  defendants.  Tiie 
nonsuit  was  granted  on  the  assumption  that  there  had  been  a  sale  to  three  only 
of  the  defendants,  and  that  this  evidence  did  not  correspond  with  the  contract 
declared  on.  This  may  be  the  import  of  the  parol  testimony;  but  the  receipts 
given  by,  or  in  behalf  of,  all  the  defendants  subsequent  to  the  loose  conversa- 
tion alluded  to  by  the  witnesses,  are  a  higher  species  of  evidence,  and  ought  to 
control  the  other.  According  to  the  receipts  the  wheat  was  received  into  the 
store  as  the  wheat  of  the  plaintiffs,  and  we  must  conclude  that  it  was  taken 
upon  freight  to  be  carried  to  New  York,  and  sold  by  the  defendants  as  agents  or 
factors  for  the  plaintiffs.     The  cause  then  ought  to  have  been  submitted  to  the 


190  ECCLESIASTICAL  LAW. 

such  warrantee  was  authorized  by  the  custom  of  the  trade  or 
business  in  which  the  agent  was  engaged.  Where  there  is  no 
proof  of  usage  or  authority  that  authorizes  an  agent  to  sell  on 


jury  on  the  point,  whether  the  conversation  between  one  of  the  plaintiffs 
and  one  of  the  defendants,  when  one  load  of  wheat  was  delivered,  amounted 
to  an  instruction  to  the  defendants  not  to  sell  on  credit.  Such  a  special 
instruction  was  necessary,  for  otherwise  the  agent  selling  on  a  usual  credit 
to  a  person,  known  and  approved  in  the  market,  would  not  be  responsible 
for  the  solvency  of  the  vendee.  The  defendants  received  the  wheat  to  carry 
to  New  York,  and  sell  as  agents  and  factors  to  the  plaintiffs,  and  whenever 
persons  are  so  employed  it  is  to  be  understood,  without  special  instructions 
to  the  contrary,  that  they  are  so  employed  to  do  it  in  the  usual  manner,  and 
consequently  they  may  sell  on  credit  without  incurring  risk,  provided  they 
do  not  unreasonably  extend  the  term  of  credit,  and  provided  they  make 
use  of  due  diligence  to  ascertain  the  solvency  of  the  purchaser.  The  author- 
ity of  a  factor  to  sell  on  credit  is  not  to  be  disputed.  Scott  v.  Sur7nan, 
Willes's  Rep.  406;  6  Term  Rep.  12;  Russel  v.  Eankey,  1  Camp.  N.  P.  258. 
Whether  the  evidence  showed  a  special  instruction  to  sell  for  cash  was  the  point 
that  should  have  gone  to  the  jury.  After  laying  down  the  general  rule  on  the 
subject,  the  Court  do  not  mean  to  give  any  opinion  on  the  evidence,  as  to  that 
point  in  this  case;  but  they  wish  to  leave  it  unbiased  for  a  future  trial.  We  are 
accordingly  of  opinion  that  a  new  trial  be  awarded,  with  costs,  to  abide  the  event 
of  the  suit.      Van  Allen  v.  Vanderpool,  6  John.  TO. 

The  Court  will  take  notice  as  a  part  of  the  law  merchant,  that  a  factor  may 
sell  goods  at  a  reasonable  credit  at  the  risk  of  his  principal  when  he  is  not  re- 
strained by  his  instructions  nor  by  the  usage  of  the  trade.  He  is  not,  however, 
authorized  to  give  credit  to  any  but  persons  in  good  ci'cdit,  and  whom  prudent 
people  would  trust  with  their  own  goods.  If  through  carelessness,  want  of  rea- 
sonable inquiry,  he  sell  on  credit  to  a  man  not  in  good  credit,  and  there  be  a 
loss,  the  factor  must  bear  it.  When  a  factor  sells  on  credit,  he  may  take  from 
the  purchaser  some  instrument  by  which  the  purchase  may  appear,  with  the  price 
and  the  time  of  payrnent,  and  on  which  the  purchaser  may  be  charged  in  an 
action  at  law.  And  it  is  very  clear  that  he  is  not  obliged  to  disclose  to  the  pur- 
chaser the  name  of  his  principal,  or  even  to  state  to  him  that  he  sells  as  factor. 
Upon  these  principles  he  may  take  a  promissory  note  payable  to  himself — and 
when  the  principal  lives  in  a  foreign  country  it  may  be  most  convenient  for  him 
to  have  the  security  payable  to  himself  so  that  he  may  sue  it  in  his  own  name. 
When  the  security  is  in  the  name  of  the  factor,  he  holds  it  in  ti'ust  for  his  prin- 
cipal. If  the  principal  demand  it,  oifering  to  jiay  the  commission,  and  the  factor 
refuse  to  sign  it,  he  then  becomes  answerable  for  the  money.  So  if  the  money 
be  lost  by  his  negligence  in  not  seasonably  demanding  it,  the  factor  is  responsi- 
ble for  his  negligence.  Upon  these  principles  it  seems  very  clear  that  in  this 
case,  if  the  defendant  had  taken  a  note  to  himself,  not  negotiable,  to  secure  the 
payment  of  the  money,  he  woulil  have  been  a  trustee  of  such  note  for  the  plain- 
tiff, and  if  the  money  could  not  be  recovered  without  any  laches  on  the  part  of 
the  defendant,  he  would,  in  law,  be  discharged. 


DECLARATIONS  OF  AGENTS.  191 

credit,  the  agent's  authority  to  sell  will  be  construed  to  be  limited 
to  a  sale  for  money  ;  upon  the  same  ground,  in  the  absence  of 
proof  of  usage,  authoi'ity  to  buy  goods  will  not  authorize  a  pur- 

But  in  this  case  the  defendant  took  as  security  a  negotiable  note  in  his  own 
name,  and  it  is  said  that  such  note  is  payment,  by  which  the  purchaser  is  dis- 
charged from  the  principal,  and  consequently  that  the  defendant  assunic-d  the 
debt  on  himself,  and  is,  at  all  events,  answerable.  It  must  be  admitted  that  in 
this  State  it  has  been  settled  by  a  series  of  decisions  which  can  be  traced  back 
sixty  years,  that  where  a  negotiable  note  is  given  to  secure  the  payment  of  money 
due  by  a  simple  contract,  the  simple  contract  is  holden  to  be  satisfied  or  merged 
in  the  note,  lest  the  debtor  on  the  simple  contract  should  be  holden  to  jjuy  it  to 
the  creditor,  anl  afterwards,  as  promiser  of  the  note,  be  holden  to  pay  its  con- 
tents to  an  innocent  indorsee.  But  the  discharge  of  the  debt  due  by  the  simple 
contract  is  the  consideration  for  the  negotiable  note.  (See  Beed  v.  Upton,  10 
Pick.  525  ;  Jones  v.  Kennedy,  1 1  Pick.  131 ;  Walkins  v.  Hill,  8  Pick.  522,  where 
it  was  held  to  be  only  presumptive  evidence  of  payment  which  may  be  rebutted. 
The  reason  given  by  the  chiefjustice  does  not  seem  to  be  satisfactory.  It  is  all 
that  the  debtor  can  reasonably  require  when  sued  upon  simple  contract,  if  judgment 
be  suspended  until  the  note  given  for  the  same  considerationis  produced  and  can- 
celled. Rmjmond  v.  Merchant,  3  Cowen,  llY ;  Hughes  v.  Wheeler,^  Cowen,  77.  In 
fact,  the  doctrine  in  the  text  does  not  very  well  accoi-d  with  the  decisions  repeatedly 
made,  that  a  promissory  note  may  be  given  and  received  in  evidence  to  support  a 
count  for  money  paid  or  money  lent.)  When  a  factor  shall  receive  a  negotiable 
note  in  payment  for  goods  sold  on  commission,  as  the  consideration  arises  from 
the  sale  of  his  principal's  goods,  the  note  may  be  holden  in  trust  for  the  princi- 
pal; but  if  it  be  so  holden  in  trust,  and  the  principal  demand  the  note,  offering 
to  pay  the  commission,  and  the  factor  refuse  to  assign  it  without  a  right  of  re- 
curring to  himself,  this  is  a  breach  of  his  trust  which  will  make  him  answerable. 
He  is  also  answerable  if  he  negotiate  the  note  for  his  own  use,  or  if  the  money 
be  lost  by  his  neglect  of  demanding  it  of  the  parties  to  the  note.  Although  a 
negotiable  note  may  change  the  remedy  against  the  purchaser  on  credit  if  he 
fail  to  pay,  yet  the  relation  between  the  principal  and  factor  may  not  be  affected. 
If  the  law  or  the  usage  were  not  so,  the  disadvantages  to  the  principal  would  be 
great.  No  factor  would  ever  take  a  negotiable  note  as  security  in  his  own  name 
unless  for  an  extra  commission  as  guaranteeing  the  payment.  By  taking  such 
a  negotiable  note,  the  principal  is  not  obliged  to  wait  for  his  money  until  due, 
but  the  factor  may  immediately  discount  the  note  and  receive  the  money.  But 
when  the  principal  lives  abroad  such  discount  is  impracticable,  unless  by  sending 
the  note  and  having  it  returned  indorsed  by  him.  Another  great  benefit  of  a 
negotiable  note  in  the  name  of  the  factor  is,  that  he  may,  on  the  credit  of  it, 
make  advances  to  his  principal,  which  is  often  desired  before  the  money  is  due, 
and  the  advances  are  easily  procured  by  the  factor's  discounting  the  note.  But 
if  the  note  is  in  the  name  of  the  principal,  the  factor  can  not,  on  the  credit  of 
it,  make  any  advances  to  his  principal. 

For  these  reasons  I  am  satisfied  that  the  principle  holden  by  our  courts,  that 
a  negotiable  note  is  a  bar  to  an  action  on  the  simple  contract,  which  is  the 


192  ECCLESIASTICAL  LAW. 

chase  upon  the  credit  of  the  principal  and  the  giving  a  negotiable 
security  for  the  purchase  money.  Proof  of  agency  can  not  be 
made  out  from  the  declarations  of  a  professed  agent,  however 
publicly  made,  and  although  accompanied  by  acts,  as  by  an 
actual  signature  of  the  principal.  Such  acts  and  declarations 
are  not  competent  evidence  in  favor  of  third  persons  to  establish 
the  authority  of  the  agent  where  such  authority  is  questioned  by 
the  principal.  An  agent  can  not  enlarge  his  authority  any  more 
by  his  declarations  than  he  can  by  his  other  acts.  The  rule  is 
clear,  as  we  have  previously  stated,  that  the  acts  of  an  agent  not 
within  the  scope  of  his  authority  do  not  bind  the  principal.-^ 

consideration  of  the  note,  does  not  necessarily  and  absolutely  affect  the  relation 
between  a  factor  and  his  principle  as  to  the  authority  of  the  former  to  take  a 
negotiable  note  in  his  own  name  in  trust  for  the  latter.  Goodenoio  v.  Tijler, 
7  Mass.  43. 

'  Dewey,  Judge :  The  statement  of  Wellington  to  Wetherbee  at  the  time  of 
indorsing  Lambert's  name  on  a  draft  discounted  by  Wetherbee,  that  he  had 
authority  from  Lambert  to  sign  his  name,  was  properly  rejected.  The  declara- 
tions of  a  professed  agent,  however  publicly  made,  and  although  accompanied 
by  an  actual  signature  of  the  name  of  the  principal,  are  not  competent  evidence 
to  prove  the  authority  of  such  agent  when  questioned  by  the  principal.  Mussey 
V.  Beecher,  3  Gush.  517  ;  Tiittle  v.  Cooper,  5  Pick.  417.  In  a  suit  between  the 
principal  and  a  third  person,  it  is  quite  enough  to  allow,  as  the  law  does,  the 
agent  to  testify  under  oath  to  his  authority  to  act  for  the  principal.  Briyham 
V.  Peters,  1  Gray,  145. 

The  next  exception  that  we  have  thought  it  important  to  consider  is  to  the 
instructions  of  the  presiding  judge  on  the  effect  of  Lambert's  knowledge  of  the 
whole  transactiona  fter  it  hud  occurred,  and  his  neglect  to  repudiate  the  agency 
and  authority  of  Wellington  in  relation  to  the  same.  The  instructions  to  the 
jury  did  not,  as  it  seems  to  us,  fully  meet  the  case  as  presented,  and  were  not  as 
favorable  to  the  defendant  as  they  should  have  been.  The  question  here  was, 
whether  Lambert  was  not  bound  by  the  acts  of  Wellington,  who,  professing  to 
act  as  his  agent,  had  parted  with  this  note  in  payment  of  one  or  more  notes  due 
from  Lambert,  the  whole  transaction  having  afterwards  become  known  to  Lam- 
bert, and  he  having  done  nothing  to  repudiate  it.  The  rule  is  a  very  .stringent 
one  upon  the  principal  in  such  case,  where,  with  full  knowledge  of  the  acts  of 
Ills  agent,  he  receives  a  direct  benefit  from  them  and  fails  to  repudiate  the  acts. 
When  the  principal  is  informed  of  what  has  thus  been  done,  he  must  dissent  and 
give  notice  of  his  dissent  within  a  reasonable  time,  and  if  he  does  not,  his  as- 
sent and  ratification  will  be  presumed.  Paley  on  Agency  (3d  Amer.  ed.),  171, 
note  (p) ;  2  Kent  Com.  616.  The  Court  are  of  opinion  that  if  the  jury  found 
the  fact  to  be  that  this  note  was  passed  by  Wellington  to  Way  in  payment  of  a 
debt  or  debts  of  Lambert,  and  that  the  fact  of  such  transfer  of  the  note  for  that 
purpos;e,  with  all  the    circumstances   connected  with  the  transaction,  became 


DECLARATIONS  OF  AGENTS.  103 

No  one  is  bound  to  deal  with  the  agent ;  whoever,  therefore, 
does  so,  knowing  him  to  be  an  agent,  is  admonished  of  the  extent 
and  limitation  of  the  agent's  autliority,  and  must,  at  liis  own  peril, 

known  to  Lambert,  it  w.is  the  duty  of  Lambert,  within  a  seasonable  time  after 
notice  came  to  him  of  said  facts,  to  repudiate  the  transaction  and  disavow  tlie 
act  of  Wellincton  as  unauthorized;  and,  if  he  failed  so  to  do,  he  would  virtiiallv 
ratify  and  adopt  the  act  of  his  professed  agent  and  be  bound  by  it.  Exceptions 
sustained.     Bri<jham  v.  Peters,  1  Gray,  147. 

Shaw,  Chief-Justice:  This  is  an  action  of  assumpsit  for  goods  sold  and  de- 
livered, which  are  alleged  to  have  been  purchased  of  the  plaintiff  by  the  defend- 
ant through  the  agency  of  William  Pierce,  acting  under  a  power  of  attorney 
from  the  defendant.  The  question  is  upon  the  legal  construction  of  the  defend- 
ant's power  of  attorney  to  Pierce,  which  is  in  writing  and  is  stated  at  large  in 
the  report.  To  this  power  was  annexed  the  following  proviso:  "Provided,  how- 
ever, that  said  Pierce  shall  not  make  purchases  or  incur  debts  exceeding  in 
amount,  at  any  one  time,  the  sum  of  two  thousand  dollars;  and  also  that  this 
power  or  agency  shall  not  extend  for  a  period  of  time  beyond  January  1,  1842." 
The  power  was  afterwards  extended,  by  a  memorandum,  to  the  1st  of  January, 
1843.  The  presumption  is,  that  the  plaintiff  knew  of  the  terms  of  this  power 
and  of  its  limitations  before  he  sold  goods  to  Pierce  on  the  strength  of  it  and  on 
the  credit  of  the  defendant;  and,  indeed,  the  evidence  was  that  he  had  seen  the 
instrument.  Various  questions  of  fact  were  submitted  to  the  jury  on  the  evidence 
as  to  the  extension  of  the  power,  Or  a  waiver  of  the  limitation,  and  the  like;  but 
the  real  question  arises  upon  the  correctness  of  the  instructions  in  matter  of  law. 
The  Court  instructed  the  jury  that  the  plaintiff  must  show  that  such  goods  were 
sold  under  the  power  to  Pierce  as  his  agent,  and  not  upon  the  personal  credit  of 
Pierce  ;  and  that,  although  the  power  was  limited,  and  such  limitation  was  known 
to  the  plaintiff,  yet  that  the  defendant  would  be  liable  for  Pierce's  purchases  even 
though  he  had  already  exceeded  the  amount  authorized  by  the  power,  if  they 
were  satisfied  from  the  evidence  that  at  the  time  of  the  purchases  Pierce  repre- 
sented that  by  such  purchases  he  would  not  exceed  his  limit.  In  another  con- 
nection the  same  instruction,  in  effect,  was  given,  with  a  slight  variance  of  form, 
as  follows :  "  That  if  the  plaintiff  had  inquired  of  Pierce  about  the  agency,  and 
had  been  informed  by  him  that  it  was  not  i"uli,  and  he  had  no  reason  to  suspect 
the  truth  of  Pierce's  declaration,  and  if  the  plaintiff  then  sold  goods  to  Pierce 
as  agent,  as  aforesaid,  the  defendant  would  be  liable  for  such  goods  even  though 
the  agency  was  then  full."  The  former  part  of  this  instruction,  that  it  must  ap- 
pear that  the  goods  were  not  sold  on  the  personal  credit  of  Pierce  is  unquestion- 
ably correct ;  but  in  regard  to  the  latter  part,  which  makes  the  defendant  respon- 
sible for  the  veracity  and  accuracy  of  Pierce,  a  majority  of  the  court  are  of 
opinion  that  it  was  not  correct  in  point  of  law.  This  power  of  attorney,  which 
is  in  the  nature  of  a  letter  of  credit,  is  precise  and  limited  in  amount,  and  though 
it  contains  some  expressions  intimating  that  the  attorney  is  the  general  agent 
of  the  constituent  to  purchase  and  sell  goods,  yet  this  is  controlled  by  the  proviso 
and  express  condition;  and  taken  altogether,  as  every  written  instrument  must 
be,  it  is  an  authority  to  purchase  in  the  name  and  on  the  credit  of  the  author 


194  ECCLESIASTICAL  LAW. 

ascertain  the  fact  upon  which  alone  depends  tlie  authority  to  bind 
the  constituent.  Under  an  authority  so  peculiar  and  limited,  it 
is  not  to  be  presumed  that  a  person  would  deal  with  the  agent 
who  has  not  full  confidence  in  his  honesty  and  veracity  and  in  the 
accuracy  of  his  books  and  accounts. 

of  the  power  to  the  amount  of  two  thousand  dollars  and  no  more.  The  precise 
point  is  this:  whether  if  Pierce,  through  design  or  mistake,  represented  to  the 
plaintiff  that  when  he  made  the  purchase  in  question  he  had  not  purchased 
on  the  credit  of  his  principal  to  the  amount  of  two  thousand  dollars  when  in 
truth  his  purchases  exceeded  that  sum,  the  defendant  was  bound  by  it.  It  is  un- 
questionably true  that  the  statements  and  representations  of  an  agent  in  trans- 
acting the  business  of  his  principal  within  the  scope  of  his  authority,  are  res 
gestae,  and  are  acts.  But  an  agent  can  not  enlarge  his  authority  any  more 
by  his  declarations  than  by  his  other  acts,  and  the  rule  is  clear  that  the  acts  of 
an  agent  not  within  the  scope  of  his  authority,  do  not  bind  the  principal.  It  is 
often  said,  indeed,  that  one  is  bound  by  the  acts  of  a  general  agent,  though  done 
against  his  instructions.  This  is  because  the  acts  are  within  the  sco])e  of  his 
authority,  and  the  violation  of  his  instructions  in  the  execution  of  such  authority 
is  a  matter  solely  between  himself  and  his  principal,  which  can  not  affect  a 
stranger  dealing  with  him  without  express  notice.  The  argument  is,  that  the 
defendant  ought  to  be  bound  because  Pierce  was  his  agent,  and  he,  by  his  letter 
of  attorney,  had  put  it  in  his  power  to  make  such  purchase.  This,  it  appears  to 
us,  assumes  the  very  point  to  be  proved.  The  plaintiff  knew  that  he  was  limited 
to  two  thousand  dollars ;  he  knew,  therefore,  that  if  he  had  purchased  to  that 
amount,  his  power,  by  its  own  limitation,  was  at  an  end.  If  it  were  otherwise,  a 
power  to  purchase  to  the  amount  of  two  thousand  dollars  would  operate  as  a 
power  to  purchase  to  an  unlimited  amount.  But  it  is  urged,  that  upon  this  con- 
struction no  one  could  safely  deal  with  the  agent.  This  objection  we  think  is 
answered  by  the  consideration  that  no  one  is  bound  to  deal  with  the  agent. 
Whoever  does  so  is  admonished  to  the  extent  and  limitation  of  the  agent's 
authority,  and  must,  at  his  own  peril,  ascertain  tlie  fact  upon  which  alone  the 
authority  to  bind  the  constituent  depends.  Under  an  authority  so  peculiar  and 
limited,  it  is  not  to  be  presumed  that  one  would  deal  with  the  agent  who  had  not 
full  confidence  in  his  honesty,  veracity,  and  in  the  accuracy  of  his  books  and  ac- 
counts. To  this  extent  the  seller  of  the  goods  trusts  the  agent,  and  if  he  is  de- 
ceived by  him,  he  has  no  right  to  complain  of  the  principal.  It  is  he  himself, 
and  not  the  principal,  who  trusts  the  agent  beyond  the  expressed  limits  of  the 
power;  and,  therefore,  the  maxim  that  where  one  of  two  innocent  persons  must 
suffer,  he  who  reposed  confidence  in  the  wrong-doer  must  bear  the  loss,  operates 
in  favor  of  the  constituent  and  not  in  favor  of  the  seller  of  the  goods.  Parsons 
V.  Armor,  ^  Pet.  41:];  Stainer  v.  T//sen,  8  Hill,  279;  Atwood  v.  Munninga,  7 
Barn.  &  Cr.  278. 

The  case  of  Putnam  v.  Svl/wan,  4  Mass.  4f>,  was  decided  on  the  ground 
that  the  defendants,  by  leaving  blank  indorsements  with  their  clerk,  had  author- 
ized him,  by  his  act,  to  bind  them  as  Indorsors.  Mussey  v.  BcecJicr,  '^  Cush.  515. 

The  general  rule  is,  that  a  principal  is  bound  by  the  act  of  his  agent  no  fur- 


DECLARATIONS  OF  AGENTS.  195 

It  is  the  party  dealing  with  the  agent,  and  not  the  principal, 
who  trusts  the  agent  beyond  tlie  express  limit  of  the  power;  and, 
therefore,  tiie  maxim  that  '^  Where  one  of  two  innocent  persons 
must  suffer,  he  who  reposes  confidence  in  the  wrong-doer  must 
bear  the  loss,"  operates  in  favor  of  the  constituents,  not  in  favor 
of  the  one  dealing  with  the  agent.  ^      It  is  evident  that  from  what 

ther  than  he  authorized  that  agent  to  bind  him;  but  the  extent  of  the  power 
given  to  an  agent  is  deducible  as  well  from  facts  as  from  express  delegation.  In 
the  estimate  or  application  of  such  facts,  the  law  has  regard  to  public  security, 
and  often  applies  the  rule  that  "he  who  trusts  must  pay."  So,  also,  collusion 
with  an  agent  to  get  a  debt  paid  through  the  intervention  of  one  in  failing 
circumstances  has  been  held  to  make  the  principal  chargeable  on  the  ground  of 
immoral  dealing.  Parsotis  v.  Armor,  8  Curtis,  470 ;  Trustees,  etc.,  v.  Bledsoe, 
5  Ind.  183. 

^  By  the  Court,  Cowen,  J.  ''The  argument  by  which  those  who  advance 
money,  or  discharge  debts  on  the  faith  of  paper,  executed  under  letters  of 
attorney  like  this,  claim  that  the  principal  should  be  bound  at  all  eveiits,  is  that 
he  has  authorized  another  in  general  words,  and  without  any  qualification,  to 
give  his  notes.  That,  having  given  such  authority,  be  can  not  require  any  per- 
son, who  takes  under  it,  to  notice  and  decide  at  his  peril  whether  the  agent  act 
in  good  faith  towards  his  principal  or  not.  That  he  has  virtually  authorized  his 
agent  to  speak  conclusively,  and  by  way  of  estoppel,  as  to  all  extrinsic  circum- 
stance, all  facts  not  apparent  on  the  face  of  the  power,  or  actually  known  to  the 
man  who  trusts  to  it.  That  the  attorney,  by  the  very  act  of  making  the  note, 
etc.,  does,  in  effect,  declare  that  it  is  available.  Some  of  us  felt  so  much  diffi- 
culty upon  this  argument  in  The  North  River  Bank  v.  Aymar,\\^^i  we  had  the 
question  under  advisement,  and  directed  a  second  discussion,  which  took  place 
in  the  course  of  the  same  term  at  which  the  present  case  was  argued  (May 
Term,  181 2).  The  answer  given  to  the  argument  is  that  such  letters  of  attor- 
ney import  in  their  own  nature  an  obligation  to  act  for,  and  in  behalf  of,  the 
principal,  and  in  his  proper  business;  that  the  man  who  receives  the  note  is 
liound  to  look  to  the  power,  and  in  so  doing,  mu.st  take  notice  of  its  legal  effect 
at  his  peril;  that  he  is  therefore  bound  to  see  that  the  attorney  does  do  not  go 
beyond  his  power  by  making  or  indorsing  notes  for  the  benefit  of  himself  or 
persons  other  than  his  principal.  The  authorities  pro  and  con  are  cited  in  The 
North  River  Bank  v.  Aymar,  ante,  p.  2(;2.  But  we  are  all  of  the  opinion  that 
the  necessity  for  weighing  these  arguments  does  not  exist  in  the  case  before  u.'?. 
It  can  not  be  pretended  that  where  the  person  who  takes  the  note  is  aware  of 
the  attorney  acting  fraudulently  toward  his  principal,  there  is  any  color  for  in- 
sisting on  the  ground  of  estoppel.  There  is  no  doubt  that  a  power  drawn  up 
nakedly  to  do  acts  for,  and  in  the  name  of,  the  principal  negatives  all  idea  of 
interest  in  the  agent  or  authority  to  act  for  the  lienefit  of  any  one  besides  the 
principal.  This  limitation,  therefore,  the  plaintiff  was  bound  to  notice.  It  is 
an  intrinsic  fact;  and  when  he  is,  moreover,  told  that  the  attorney,  as  between 
himself  and  principal  is  abusing  his  trust,  the  reason  for  making  the  act  con- 
clusive entirely  ceases.     The  plaintiff  himself  then  becomes  a  party  to  the  fraud. 


196  ECCLESIASTICAL  LAW, 


we  have  already  said,  that  the  rule  under  consideration,  that  the 
declarations,  admissions,  and  acts  of  the  agent,  are  only  receiv- 
able in  evidence,  where  they  constitute  a  part  of  the  subject 
matter  under  investigation,  applies,  when  the  question  arises  be- 
tween the  principal  and  third  parties,  that  the  declarations  of 
the  agent  may  be  offered  in  evidence  on  a  trial  or  investigation 
between  the  principal  and  the  agent  against  the  agent,  the  same 
as  against  any  otiier  party  to  the  proceeding  ;  and  where  the  dec- 
larations or  admissions  of  an  agent  constitute  a  part  of  the  res 
gestce,  they  may  be  offered  in  evidence  in  favor  of  the  agent  in  a 
suit  against  him  by  the  principal  and  against  the  principal.  In 
general,  a  person  is  not  answerable  criminally  for  the  acts  of  his 
servants  or  agents,  unless  a  criminal  design  is  brought  home  to 
him,  or  he  is  an  accessory  before,  or  after  the  act;  but  the  act  of 
the  agent  or  servant  upon  the  trial  of  an  indictment,  or  upon  a 
Church  investigation  against  the  principal,  may  be  introduced  in 
evidence,  as  tending  to  show  that  such  act  was  done,  after  first 
laying  the  foundation,  as  in  civil  cases,  by  proof  of  the  agency. 
For  a  fact  may  be  shown  which  tends  to  connect  the  defendant  or 
principal  with  it,  whether  it  was  followed  by  civil  or  criminal  con- 
sequences ;  but  it  is  a  totally  different  question  in  consideration 
of  criminal  law,  how  far  the  principal  may  be  affected  when  the 
fact  is  so  established.  There  are  a  few  apparent  exceptions  to 
this  rule.  The  case  of  a  bookseller  or  the  publisher  of  a  news- 
paper is,  to  some  extent,  an  exception,  but  to  what  precise  ex- 
tent is,  perhaps,  yet  an  unsettled  question.  Some  of  the  leading 
cases  only  carry  the  doctrine  of  publication  so  far  as  to  hold  that 

[n  this  case  he  must  be  presumed  to  have  known  wlio  it  was  that  consti- 
hitof]  the  insolvent  firm  of  George  W.  Tysen  &  Co.,  the  ])ayees  of  the  note — a 
firm  wliich  had  just  compromised  with  him,  and  that  this  defendant  was,  there- 
fore, not  a  member  of  the  firm.  Had  he  been,  there  was  no  need  of  George 
noting  as  attorney.  When  a  person  sees  the  note  of  a  stranger,  made  and  in- 
rinrsod  by  one  of  the  jiayees  to  discharge  their  own  debt,  and  talvos  such  an  in- 
dorsement, he  has  seen  enougli  in  connection  with  tlie  power  to  raise  a  strong 
suspicion,  not  to  say  conviction,  that  the  whole  is  a  fraud  upon  the  stranger. 
It  is  too  much  to  allow  that  he  may  shut  his  eyes  and  say  he  supposes  there  was 
lome  special  circumstances  on  which  the  attorney  had  a  right  thus  to  act.  The 
transaction  is,  on  its  face,  out  of  the  ordinary  course  of  busines.s.  This  was  of 
itself  sufficient  to  put  him  on  inquiry.  In  the  case  of  The  North  River  Bank  v. 
Aymnr,  it  was  assumed  that  the  plaintiffs  were  bona  fide  holders.  Stainer  v. 
Ttjsen,  3  Hill,  280;  Atwood  v.  31inriiin>/s,  7  Barn.  &  Cress.  278. 


DECLARATIONS  OF  AGENTS.  197 

the  act  of  the  servant  is  prim  a  facie  evidence  against  tlie  principal, 
but  not  privy  to  or  eucourging  it.  So,  also,  it  is  said  that  the  de- 
fendant, in  such  cases,  may  rebut  the  presumption  by  shovring  that 
the  libel  Avas  sold  contrary  to  his  orders,  or  under  circumstances 
denying  all  privity  on  his  part.^      Again  it  has  been  held  that 

^  Another  class  of  cases,  where  the  liability  of  the  master  for  the  criminal 
acts  of  the  servant  has  been  recognized,  has  arisen  under  revenue  laws,  and 
police  regulations.  In  Attorney -General  v.  Skldons,  1  Cromp.  &  Jarv.  220,  and 
1  Tyrw.  41  (a  case  of  concealing  smuggled  goods),  it  was  held  that  a  trader  is 
liable  to  a  penalty  for  the  illegal  act  of  a  servant,  done  in  the  conduct  of  his 
business,  with  a  view  to  protect  the  smuggled  goods,  though  the  master  be  ab- 
sent at  the  time  the  act  is  done.  It  seem  here  again  to  have  been  held  only 
prima  facie  evidence,  and  that  the  master  might  have  introduced  evidence  for 
the  purpose  of  rebutting  such  prima  facie  case.  In  Attorney  -General  v.  Rid- 
dle^ 2  Cromp.  &  Jarv.  41)3,  and  2  Tyrw.  523,  which  was  an  information  under 
St.  1  Geo.  4  c.  58,  prohibiting  the  delivery  of  paper  not  tied  up,  and  labeled, 
and  requiring  before  it  is  removed  from  the  place  of  manufacture  that  it  be  in- 
closed in  a  labeled  wrapper,  the  evidence  was  that  the  wife  of  the  defendant, 
having  authority  from  him  to  do  certain  acts  in  his  trade  of  a  paper  manufac- 
turer, pledged  paper,  which  had  no  wrapper  or  label  on  it,  the  Court  held  that 
the  authority  of  the  wife  was  a  question  for  the  jury,  and  that  it  ought  to  have 
been  left  to  the  jury  to  decide  whether  or  not  the  acts  of  the  wife  under  the  cir- 
cumstances stated  were  done  by  the  authority  of  the  husband.  It  seems  to  us, 
that  the  case  of  a  sale  of  liquors,  prohibited  by  law,  at  the  shop  or  establish- 
ment of  the  principal,  by  an  agent  or  servant  usually  employed  in  conducting 
his  business,  is  one  of  that  class  in  which  the  master  may  properly  be  charged 
criminally  for  the  act  of  the  servant.  But  in  looking  at  the  question  presented 
by  the  bill  of  exceptions  in  the  present  cases,  and  considering  what  should  be 
stated  as  the  rule  as  to  the  responsibility  of  the  principal  or  master  in  such  cases, 
the  Court  have  come  to  the  opinion  that  the  law  was  stated  too  strongly  upon 
that  point  against  the  defendant,  inasmuch  as  the  defendant,  under  the  instruc- 
tions given,  might  have  been  found  guilty  of  the  charge  in  the  indictment,  if  a 
sale  had  been  made  in  his  shop,  by  any  person  in  his  employment,  without  any 
reference  to  the  circumstances  under  which  the  sale  was  made,  and,  although 
against  the  will,  and  in  contravention  of  the  orders  of  the  defendant.  We  think 
that  a  sale  by  the  servant,  in  the  shop  of  the  master,  is  on]j  prima  Jacie  evi- 
dence of  such  sale  by  the  master  as  would  subject  him  to  the  penalty  for  vio- 
lating the  statute,  forbidding  the  sale  of  spirituous  liquors  without  license;  that 
the  relation  of  these  parties,  the  fact  that  the  defendant  was  in  possession  of 
the  shop,  and  was  the  owner  of  the  liquor,  and  that  the  sale  was  made  by  his 
servant,  furnish  strong  evidence  to  authorize  and  require  the  jury  to  find  the 
defendant  guilty.  But  we  can  not  say  that  no  possible  case  can  arise,  in  which 
the  inference  from  all  these  facts  may  not  be  rebutted  by  other  proof  Unex- 
plained, they  would  be  sufficient  to  convict  the  party.  So  too,  it  should  be  uniler- 
etood  that  merely  colorable  dissent,  or  a  prohibition  not  to  sell,  however  publicly 
or  frequently  repeated,  if  not  made  bonajide,  will  not  avail.     But  if  a  sale  of 

14 


198  ECCLESIASTICAL  LAW, 


booksellers  and  the  proprietors  of  newspapers,  were  liable  to 
answer  criminally  for  sales  made  by  their  servants  and  agents, 
although  the  particular  act  of  sale  or  publication  was  without 
their  knowledge;  while  this  fact  should  influence  the  degree  of 
the  punishment  to  which  the  bookseller  or  publisher  of  a  news- 
paper may  be  liable,  it  does  not  exonerate  liim  from  responsibil- 
ity.^ In  a  recent  case  it  was  held  that  where  a  pei'son  derives 
profit  from,  and  furnishes  means  for,  carrying  on  the  sale  of 
books,  and  intrusts  the  conduct  of  the  sale  of  books,  or  publishes 
a  newspaper,  and  intrusts  the  conduct  of  the  sale  or  publication 
to  one  whom  he  selects,  he  ought  to  be  answerable,  although  it 
can  not  be  shown  that  he  was  criminally  concerned  in  the  partic- 
ular act  of  publication.  Lord  Tenterdon  said:  "I  do  not  mean 
to  say  that  some  possible  case  may  not  occur  in  which  he  would 
be  exempt,  but  generally  speaking  he  is  answerable."     Another 

liquor  is  made  by  the  servant  without  the  knowledire  of  the  master,  and  really 
in  opposition  to  his  will,  and  in  no  way  participated  in,  approved,  or  counte- 
nanced by  him,  and  this  is  clearly  shown  by  the  master,  he  ought  to  be  acquitted. 
CommoinceaUh  v.  Nichols,  10  Metcalf,  '26L  _  Metcalf,  J.  "The  question  in  these 
two  cases,  though  somewhat  differently  presented,  is,  in  substance  and  effect,  the 
same,  namely,  whether  an  indictment  or  complaint,  which  alleges  that  A  sold 
spirituous  or  intoxicating  liquor  without  any  legal  authority,  contrary  to  St. 
1852,  c.  322,  §  7,  is  supported  by  proof  that  he  sold  it  by  his  clerk,  servant,  or 
ao^ent.  It  was  decided  in  Commonwealth  v.  Nichols,  10  Met.  259,  that  a  party 
might  be  convicted  under  the  Rev.  Sts.  c.  47,  on  an  indictment  for  the  unlawful 
sale  of  spirituous  liquor  by  a  servant  or  agent,  applied  in  his  business.  The 
question,  however,  whether  the  indictment  in  such  case  should  allege  that  the 
sale  was  by  hira  through  his  servant's  agency  (as  in  the  present  case,  it  is 
contended  that  it  should),  was  not  there  raised  nor  discussed.  But  it  is  a  gen- 
eral rule  in  civil  action,  and  in  prosecutions  for  misdemeanors,  that  when  a 
declaration  or  indictment  alleges  that  a  person  did  an  act,  such  allegation  is 
sustained  by  proof,  that  he  caused  it  to  be  done  by  another.  3  Stark.  Ev.  4th 
Am.  Ed.  1852.  Thus,  in  an  action  to  recover  damages,  alleged  to  have  been 
cau.sed  by  the  defendant's  negligence  in  driving  a  carriage,  proof  that  the  dam- 
age was  caused  by  his  servant's  negligence  in  driving  it,  supports  the  allegation. 
Bnic.kor  V.  Fromont,  6  T.  R.  G5i).  See,  also,  Uays  v.  Jleselline,  2  Camp.  604; 
Phelps  V.  Riley,  3  Conn.  260.  So  an  indictment  which  charges  the  defendant 
with  publishing  a  libel,  is  supported  by  evidence  that  he  procured  another  per- 
son to  publi.sh  it.  Archb.  Grim.  PI.  5th  Am.  Ed.  527,  528;  Rex  v.  Gutch, 
Mood.  &  Malk.  437.  And  an  inilictintMit  which  charges  the  defendant  with  sell- 
ing lottery  tickets  contrary  to  law,  is  supported  by  proof  that  he  sold  them  by 
his  servant.  Commonwealth  v.  Gillespie,  7  S.  &  R.  469,  478;  Commonwealth  v. 
Park  «£r  Reed,  1  Gray,  554;  Rex  v.  Aliiion,  5  Burr.  268G. 
^  People  v.  Wilso7i,  ei  al.  64  111.  210. 


DECLARATIONS  OF  AGENTS.  199 

class  of  cases,  where  the  liability  of  the  master  or  principal  for 
the  criminal  act  of  the  servant  or  agent  has  been  recognized,  has 
arisen  under  the  revenue  laws  and  police  regulations.  Thus,  in 
a  case  of  concealing  smuggled  goods,  it  was  held  that  a  trader 
was  liable  to  a  penalty  for  the  illegal  act  of  a  servant,  done  in 
the  conduct  of  his  business  with  a  view  to  protect  the  smnggl(;d 
goods,  though  the  master  be  absent  at  the  time  the  act  is  done. 
It  seems  here  again,  however,  to  have  been  held  only  j^^'ifnd  facie 
evidence,  and  that  t!ie  master  might  have  introduced  evidence 
rebutting  such  prima  facie  case.  It  was  held  in  two  cases  in 
Massachusetts,  Avhere  parties  Avere  indicted  for  selling  intoxicat- 
ing or  spirituous  liquors  without  legal  authority,  that  the  charge 
was  supported  by  proof  that  he  sold  it  by  his  clerk,  servant,  or 
agent.  And  in  the  same  cases  it  was  held  that  the  indictment 
need  not  allege  that  the  sale  was  by  him  through  his  clerk,  serv- 
ant, or  agent ;  so,  also,  it  was  held  that  an  indictment  that 
charged  the  defendant  with  selling  lottery  tickets  contrary  to  law 
is  supported  by  proof  that  he  sold  them  by  his  servant.^ 

^  The  first  question  that  arises  is  upon  the  division  of  opinions  whether,  under 
the  circumstances  of  the  case,  the  testimony  of  Captain  Coit  to  the  facts  stated 
in  the  record,  was  admissible.  That  testimony  was  to  the  following  effect:  That 
he,  Captain  Coit,  was  at  St.  Thomas  while  The  General  Winder  was  at  that 
island,  in  September,  1824,  and  was  frequently  on  board  the  vessel  at  that  time  ; 
that  Captain  Hill,  the  master  of  the  vessel,  then  and  there  proposed  to  the 
witness  to  engage  on  board  The  General  Winder  as  mate  for  the  voyage  then 
in  progress,  and  described  the  same  to  be  a  voyage  to  the  Coast  of  Africa  for 
slaves,  and  thence  back  to  Trinidad  de  Cuba;  that  he  offered  to  the  witness 
seventy  dollars  per  month,  and  five  dollars  per  head  for  every  prime  slave  which 
should  be  brought  to  Cuba;  that  on  the  witness's  inquiring  who  would  see  the 
crew  paid  in  the  event  of  a  disaster  attending  the  voyage.  Captain  Hill  replied, 
"  Uncle  John,"  meaning  (as  the  witness  understood)  John  Gooding,  the  defend- 
ant. It  is  to  be  observed,  that  as  preliminary  to  the  admission  of  this  testimony, 
evidence  had  been  offered  to  prove  that  Gooding  was  owner  of  the  vessel ;  that 
he  lived  at  Baltimore,  where  she  was  fitted  out ;  that  he  appointed  Hill  master, 
and  gave  him  authority  to  make  the  fitments  for  the  voyage,  and  paid  the  bills 
therefor;  that  certain  equipments  were  put  on  board  peculiarly  adapted  for  the 
slave-trade ;  and  that  Gooding  had  made  declarations  that  the  vessel  had  been 
engaged  in  the  slave-trade  and  had  made  him  a  good  voyage.  The  foundation 
of  the  authority  of  the  master,  the  nature  of  the  fitments,  and  the  object  and 
accomplishment  of  the  voyage,  being  thus  laid,  the  testimony  of  Captain  Coit 
was  offered  as  confirmatory  of  the  proof,  and  properly  admissible  against  the  de- 
fendant. It  was  objected  to,  and  now  stands  upon  the  objection  before  us.  The 
argument  is,  that  the  testimony  is  not  admissible,  because  in  criminal  cases  the 


200  ECCLESIASTICAL  LAW. 


CHAPTER  XIII. 

HEARSAY     EVIDENCE. 

Subject  to  the  exceptions  that  have  ah-eady  been  considered 
at  some  length,  hearsay  evidence  of  a  fact  is  not  admissible  as  evi- 
dence of  the  fact,  or  even  as  evidence  tending  to  establish  it.  All 
questions  upon  the  rules  of  evidence  are  of  vast  importance  to  all 
orders  and  to  all  conditions  of  men.  Our  lives,  our  liberty,  and  our 
property  are  all  concerned  in  the  support  of  these  rules,  which  have 
been  matured  by  the  wisdom  of  ages  and  are  now  revered,  not  only 
on  accountof  their  wisdom,  but  on  account  of  their  antiquity.  ^'  One 
of  these  rules,"  says  Chief- Justice  Marshall,  "  is,  that  hearsa}'  evi- 
dence is,  in  its  own  nature,  inadmissible."  That  this  species  of  tes- 
timony supposes  something  better  which  might  be  adduced  in  this 
particular  case  is  not  the  sole  ground  of  its  exclusion.  Its  intrinsic 
weakness,  its  incompetency  to  satisfy  the  mind  of  the  existence  of 

declarations  of  the  master  of  the  vessel  are  not  evidence  to  charge  the  owner 
with  an  offense,  and  that  the  doctrine  of  the  binding  effect  of  such  declarations 
by  known  agents  is,  and  ought  to  be,  confined  to  civil  cases.  We  can  not  yield 
to  the  force  of  the  argument.  In  general  the  rules  of  evidence  in  criminal  and 
civil  cases  are  the  same.  Whatever  the  agent  does  within  the  scope  of  his 
authority  binds  his  principal  and  is  deemed  his  act.  It  must,  indeed,  be  shown  that 
the  agent  has  the  authority  and  that  tiie  act  is  within  its  scope,  but  these  being 
conceded  or  proved  either  by  the  course  of  business  or  by  express  authorization, 
the  same  conclusion  arises  in  point  of  law  in  both  cases.  Nor  is  there  any 
authority  for  confining  the  rule  to  civil  cases.  On  the  contrary,  it  is  the  known 
and  familiar  principle  of  criminal  jurisprudence,  that  he  who  commands  or  pro- 
cures a  crime  to  be  done,  if  it  is  done,  is  guilty  of  the  crime,  and  the  act  is  his 
act.  This  is  so  true,  that  even  the  agent  may  be  innocent  when  the  procurer  or 
principal  may  be  convicted  of  guilt,  as  in  the  case  of  infants  or  idiots  employed  to 
administer  poison.  The  proof  of  the  command  or  procurement  may  be  direct  or  in- 
direct, positive  or  circumstantial;  but  this  is  matter  for  the  consideration  of  the 
jury,  and  not  of  legal  competency.  So  in  cases  of  conspiracy  and  riot,  when  once 
the  conspiracy  or  combination  is  established,  the  act  of  one  conspirator  in  the 
prosecution  of  the  enterprise  is  considered  the  act  of  all,  and  is  evidence  against 
all.  Each  is  deemed  to  consent  to,  or  command  what  is  done  by  any  other  in 
furtherance  of  the  common  object.  Upon  the  facts  of  the  present  case,  the 
master  was  just  as  much  a  guilty  principal  as  the  owner,  and  just  as  much  within 
the  purview  of  the  act,  by  the  illegal  fitment.  United  States  v.  Gooding,  7 
Curtis,  2X1;  Commonwealth  v.  Gillexjvj,  1  Serg.  &  Rawle,  469-478;  Phelps  v. 
liilei/,  :5  Conn.  2GG  ;  Arch.  Cr.  PI.  &  Pr.  5  Am.  ed.  527,  528. 


HEARSAY  EVIDENCE.  201 


the  fact,  and  the  frauds  which  might  be  practiced  under  its  cover, 
combine  to  support  the  rule  that  hearsay  evidence  is  totally  in- 
admissible. To  this  rule  there  are  some  exceptions,  which  are 
said  to  be  as  old  as  the  rule  itself.  These  are  cases  of  pedigree, 
prescription,  custom,  some  cases  of  boundary,  of  declarations 
against  interest,  and  also  of  matters  of  general  and  public  his- 
tory, Avhich  may  be  received  without  that  full  proof  which  is 
necessary  for  the  establishment  of  a  private  fact.  The  danger 
of  admitting  hearsay  evidence  is  sufficient  to  admonish  courts  of 
justice  and  other  tribunals  sitting  for  the  purpose  of  investigating 
facts,  against  lightly  yielding  to  the  introduction  of  fresh  excep- 
tions to  an  old  and  well  established  rule,  the  value  of  which  is 
felt  and  acknowledged  by  all.  The  terra  hearsay  applies  as  well 
to  written  as  to  oral  declarations.  It  denotes  that  character  of  evi- 
dence Avhich  docs  not  derive  its  value  solely  from  the  knowledge  or 
from  the  credit  to  be  given  to  the  witness,  or  other  testimony,  but 
is  dependent  upon  the  veracity  and  competency  of  other  evidence 
unsupported  by  the  sanctity  of  the  oath.  It  is  often  a  very  diffi- 
cult question  to  distinguish  between  original  and  hearsay  evidence, 
for  it  does  not  follow  that  words  spoken  by  a  third  person  are  to 
be  considered  as  hearsay ;  for  it  frequently  occurs  that  the  very 
fact  in  controversy  is  whether  such  words  were  spoken,  or  in  case 
of  writing,  whether  such  instrument  was  written,  and  not  whether 
the  words  spoken  or  the  instrument  wi-itten  correctly  recites  the 
truth.  Where  such  is  the  character  of  the  inquiry,  it  follows,  as 
a  necessai-y  corollary,  that  the  writing  or  words  does  not  fall 
within  the  definition  of  hearsay  evidence,  but  is  original  and  pri- 
mary proof,  and  as  such,  admissible  in  evidence.  This  principle 
is  often  illustrated  in  actions  for  malicious  prosecutions,  in  ques- 
tions of  agency,  in  questions  grooving  out  of  the  relation  of 
trustee  and  cestui  qui  trust,  and  also  in  cases  of  insanity.  Thus 
letters  and  conversations  addressed  to  a  person  whose  insanity  is 
the  subject  of  inquiry,  being  connected  in  evidence  with  some 
act  done  by  him,  are  receivable  as  original  evidence  as  tending 
to  show  the  sanity  or  insanity  of  the  person  to  whom  such  letters 
or  conversations  Avere  addressed.  The  replies  given  to  inquiries 
made  at  the  residence  of  an  absent  witness  concerning  his  ab- 
sence are  also  original  evidence.  This  doctrine  is  applicable  to 
all  other  writings  or  communications  where   the  fact  that  such 


202  ECCLESIASTICAL  LAW. 


writing  or  communication  was  made  is  the  point  in  controversy, 
and  not  its  truth  or  falsity.  Upon  the  same  principle,  evidence 
of  general  reputation,  reputed  ownership,  public  rumor,  and  the 
like,  though  composed  of  the  speech  of  a  third  person,  is  original 
evidence.  Upon  the  question  whether  a  libelous  painting  was 
made  to  represent  a  certain  individual,  Lord  Ellenborough  per- 
mitted the  declarations  of  the  spectators,  while  looking  at  the 
picture  in  the  exhibition  room,  to  be  given  in  evidence.^  Upon 
the  question  as  to  whether  a  person  was  solvent  or  insolvent, 
general  reputation  was  held  admissible.^     It  was  also  held,  that 

1  Dti  Bost  V.  Beresford,  2  Carapb.  512, 

^  The  question  put  by  the  plaintiff's  counsel  to  the  witness,  Putnam,  was 
competent  on  the  ground,  among  others,  suggested  at  the  trial  Two  sugges- 
tions were  at  issue  :  first,  whether  when  the  transfer  was  made  Davis  &  Kilburn 
were  insolvent;  and,  second,  whether  the  defendant  had  reasonable  cause  to  be- 
lieve them  to  be  insolvent.  Upon  the  latter  issue  it  was  clearly  competent  to 
show  they  were  reputed  to  be  insolvent.     Lee  v  Kilburn,  3  Gray,  598. 

Metcalf,  Judge,  said:  "The  Court  are  of  opinion  that  the  witness,  Ewing, 
should  have  been  permitted  to  answer  the  interrogatory  '  whether  Boyington  was 
in  good  reputation  for  property  up  to  the  time  of  the  attachments.'  In  Lee  v. 
Kilburn,  3  Gray,  594,  it  was  held,  that  testimony  was  admissible  to  show  that 
the  debtor  was  reputed  to  be  insolvent  for  the  purpose  of  proving  that  his  pre- 
ferred creditor  had  reasonable  cause  to  believe  him  so.  It  follows  that  testimony 
is  admissible  that  a  debtor  was  in  good  reputation  for  property  for  the  purpose 
of  showing  that  a  preferred  creditor  had  not  reasonable  cause  to  believe  him  in- 
solvent. The  testimony  in  both  case  is  admissible  on  one  and  the  same  ground, 
namely,  that  men's  belief  as  to  matters  of  which  they  have  not  personal  knowl- 
edge, is  reasonably  supposed  to  be  afifected  by  the  opinions  of  others  who  are 
about  them.  Such  testimony  may  be  of  very  little  weight,  but  it  is  to  be  weighed 
by  the  jury.     The  Court  decide  only  on  its  competency. 

The  evidence  offered  by  the  defendant  concerning  the  business,  credit,  and 
pecuniary  standing  of  Noyes,  the  plainliff"s  assignor,  prior  and  up  to  the  day  of 
the  date  of  the  alleged  fradulent  sale,  should  have  been  admitted,  as  having  a 
tendency  to  disprove  the  charge  that  he  had  reasonable  cause  to  believe  that  said 
Noyes  was  at  that  time  insolvent.  Upon  a  question  of  that  kind,  the  means  of 
forming  a  judgment  are  commonly,  and  from  necessity,  very  imperfect.  Indi- 
viduals can  not,  in  general,  resort  to  the  most  authentic  sources  of  information 
to  ascertain  the  pecuniary  responsibility  of  parties  with  whom  they  deal.  They 
arc  obliged  to  act  upon  opinions  entertained  and  adojited  in  view  of  circum- 
stances which  are  merely  external  and  apparent,  and  hence  they  may  well  be 
presumed  to  be,  in  some  degree,  influenced  in  their  transactions  by  the  business 
credit  and  pecuniary  standing  which  a  party  has  acquired  and  maintained  among 
his  neighbors  and  acquaintances.  When  his  motives  to  action  in  pecuniary  trans- 
actions are  called  in  question,  considerations  of  this  kind  deserve  attention,  and, 
therefore,  are  properly  subjects  of  inquiry  and  investigation.     The  weight  and 


HEARSAY  EVIDENCE.  203 


it  was  competent  to  sliow  tliat  a  party  was  reputed  solvent,  and 
that  his  creditor  had  not  reasonable  grounds  for  believing  him  to 
be  insolvent. 

Tlie  rule  of  law  is  now  well  settled,  that  where  the  bodily  or 
mental  feelings  of  a  party  are  the  subject  of  inquiry  at  a  ])articular 
time,  the  usual  and  natural  expi-essions  made  at  tlie  time  are 
considered  competent  and  admissible  in  evidence.  This  rule  is 
founded  upon  the  consideration  that  such  expressions  are  the 
natural  and  necessary  language  of  emotion,  of  the  existence  of 
which,  from  the  very  nature  of  the  case,  there  can  be  no  other 
evidence.  There  are  ills  and  pains  of  the  body  and  mind  which 
are  proper  subjects  of  proof  which  can  be  shown  in  no  other 
way.  Such  evidence,  however,  is  not  to  be  extended  beyond 
the  necessity  upon  which  the  rule  is  founded ;  therefore,  any 
thing  in  the  nature  of  a  narration  should  be  carefully  excluded, 
and  the  testimony  should  be  strictly  confined  to  such  complaints, 
explanations,  and  expressions  as  usually  and  naturally  accompany 
and  furnish  evidence  of  a  present  existing  pain  or  malady.  Of 
course,  it  will  always  be  for  the  jury,  or  for  the  triers  of  fact,  to 
determine  whether  such  expressions  are  real  or  feigned.  The 
limitations  of  the  rule  above  stated  are  not  intended  to  apply  to 
the  statements  made  by  a  patient  to  a  physician  alone,  but  are 
equally  applicable  when  made  to  any  other  person  or  persons.^ 

value  of  such  evidence  must,  in  each  particular  case,  depend  greatly  upon  the 
kind,  nature,  and  strength  of  the  proofs  it  is  intended  to  encounter.  Under  some 
circumstances,  which  might  easily  be  conceived,  it  would  undoubtedly  be  of  very 
little  importance,  while  in  other  cases  it  might  be  effectual  and  decisive.  Being 
properly  admissible,  the  exclusion  of  proof  concerning  the  credit  and  standing 
of  Noyes  deprived  the  defendant  of  the  benefit  of  evidence  to  which  he  was  justly 
entitled,  and  which  if  the  jury  had  been  allowed  to  hear  and  considei",  might 
have  been  sufficient  to  have  induced  them  to  render  a  different  verdict.  4  Gray, 
113  &  579. 

^  She  was  questioned  as  to  her  bodily  infirmity.  She  said  it  was  of  some  du- 
ration— several  days.  She  assigned  her  going  to  Manchester  as  a  period  when 
she  was  laboring  much  under  the  disorder.  Then,  if  inquiries  of  })atient8  by 
medical  men,  with  the  answers  to  them,  are  evidence  of  the  state  of  health  of 
the  patients  at  the  time,  this  must  be  evidence.  What  were  the  complaints,  what 
the  symptoms,  what  the  conduct  of  the  parties  themselves  at  the  time,  are  always 
received  in  evidence  upon  such  inquiries,  and  must  be  resorted  to  from  the  very 
nature  of  the  thing.  The  substance  of  the  whole  conversation  was,  that  the  wife 
had  been  ill  at  least  from  the  9th  of  November,  when  she  was  examined  by  the 
surgeon  and  certified  to  be  in  good  health,  down  to  the  day  when  the  conversa- 


204  ECCLESIASTICAL  LAW. 


In  an  action  for  criminal  conversation,  it  being  material  to 
ascertain  the  terms  upon  wliicli  the  husband  and  wife  had  lived 
together  before  the  seduction,  their  language  and  deportment 
towards  each  other,  their  conversation,  and  even  their  corre- 
spondence with  third  parties,  are  received  in  evidence.^ 

It  is,  however,  always  required  that  proof  should  be  given 
tliat  the  declarations,  or  letters  of  a  wife  purporting  to  express 
her  feelings,  were  of  the  time  antecedent  to  the  date  of  any  fact 
calculated  to  arouse  suspicion  of  a  criminal  nature,  and  when 
there  existed  no  ground  for  imputing  collusion.  It  has  been  held 
that  the  letters  of  the  wife  are  inadmissible,  if  written  after  an 
attempt  by  the  defendant  to  commit  adultery;  and  so  strict  is 
this  rule  of  construction,  that  it  was  held  that  the  dates  of  the 
letters  were  not  sufficient  evidence  of  the  time  when  they  were 
written;  but  the  postmarks  on  the  back  of  a  letter  has  been  held 
to  afford  the  requisite  proof.''  There  can  be  no  doubt  in  case 
of  a  rape  that  the  declarations^  of  the  injured  female,  made  im- 
mediately or  soon  after  injury  inflicted,  are  competent  testimony, 
provided  the  female  herself  had  just  been  examined ;  compe- 
tent, however,  not  for  the  purpose  of  proving  the  commission  of 
the  offense,  but  a  corroboration  of,  or  contradictory  to,  the  state- 
ment in  Court."*      Although  such  testimony  is  competent  for  the 

tion  took  place  and  those  appeai-ances  were  exhibited  to  the  witness,  and  in  that 
view  I  think  the  evidence  was  unexceptionable.  It  was  also  evidence  in  another 
point  of  view,  for  if  the  plaintiff  produced  the  surgeon  as  a  witness  to  show  from 
his  examination  of  the  wife  and  what  she  told  liim,  that  she  was  in  a  good  state 
of  health  and  an  insurable  life  on  the  9th  of  November,  this  was  but  a  sort  of 
cross-examination,  as  it  were,  of  the  same  witness  to  show  from  what  she  had 
said  of  horsolf  to  another  person,  that  she  was  not  really  well  when  she  told  the 
surgeon  so  on  that  day.     Aveson  v.  Ld.  Kinnaird,  6  East,  194. 

^  Trehainj  v.  Coleman,  2  Stark.  191. 

2  WiHon  V.  Webster,  7  C.  &  P.  198. 

'  Whatever  may  be  the  rule  elsewhere,  it  is  settled  in  Ohio  that  in  a  prosecu- 
tion for  rape  or  for  assault  with  intent,  etc.,  the  "substance  of  what  the  prose- 
cutrix said,"  or  the  "declaration"  made  by  her  immediately  after  the  offense 
was  committ(Ml,  may  be  given  in  evidence  in  the  first  instance  to  corroborate  her 
testimony,     il/'  Comb  v.  The  Slate,  8  Ohio  S.  §  616. 

■•  There  can  be  no  doubt  that  in  a  case  of  rape  the  declarations  of  the  injured 
female  made  immediately,  or  soon  after  the  injury  inflicted,  are  competent  tes- 
tiinoiiy,  provided  the  female  herself  has  first  been  examined;  competent  not  for 
llie  purpose  of  proving  the  commission  of  the  offense,  but  as  a  corroborative  of, 
or  contradictory  to,  her  statements  made  in  Court.     If  these  declarations  are  in 


HEARSAY  EVIDENCE.  205 


purpose  before  stated,  it  is  not  competent  to  prove  the  offense ;  as 
to  that  it  is  mere  hearsay.^  So,  also,  a  prosecution  for  a  con- 
spiracy to  assemble  a  large  meeting  for  the  purpose  of  extend- 

accordance  with  the  testimony  given  in  Court,  they  tend  to  strengthen  and 
give  effect  to  that  testimony ;  if  against  it  the  testimony  is  destroyed.  If  such 
testimony  were  to  be  entirely  excluded  when  offered  on  the  part  of  the  prosecu- 
tion, it  would  be  extremely  difficult  to  convict  in  any  case.  For,  as  a  general 
rule,  it  would  be  dangerous  to  convict  unless  immediate  complaint  was  made  by 
the  female  to  her  friends  or  others.  And  that  such  complaint  was  made,  and 
the  substance  of  it  ought  not  to  be  withheld  from  the  jury.  In  this  point  of  view 
and  for  this  purpose  testimony  given  by  the  mother  (for  the  mother  was  the  wit- 
ness on  the  stand)  of  the  declarations  made  by  her  daughter  immediately  upon 
her  return  home  on  the  day  the  offense  was  said  to  have  been  given,  was  com- 
petent.    Johnson  v.  The  State,  17  Ohio,  595. 

1  38  Eng.  Com.  Law  R.  173.  It  is  said  (1  Chit.  Cr.  Law,  Riley's  Ed.  481, 
1  Leach,  110,  199),  "it  was  once  thought  that  when  the  party  immediately  in- 
jured was  an  infant  of  tender  years,  the  parents  of  the  child  might  be  admitted 
to  state  the  account  he  had  given  of  the  transaction,  immediately  after  it  had 
taken  place,  and  that  the  infant  might  be  examined  though  not  sworn  (and  so  is 
the  authority  of  2  Hale,  278 ;  9  Bull.  N.  P.  293) ;  but  both  these  ideas  are  now 
rejected,  and  it  is  fully  established  that  if  the  infant  is  of  competent  discretion,  he 
may  be  sworn,  however  young,  and  if  not,  no  evidence  whatever  can  be  given 
respecting  his  assertions."  That  being  the  true  rule  in  case  of  a  person  imma- 
ture in  intellect,  I  can  not  see  why  the  reason  of  the  rule  does  not  .apply  with  as 
much  force  to  exclude  all  evidence  of  the  declarations,  assertions,  or  signs  made 
supposed  to  communicate  ideas,  by  a  person  who  is  incompetent  to  be  sworn  as 
a  witness  by  reason  of  idiocy,  or  weakness  of  intellect  for  any  cause,  as  evidence 
of  the  commission  of  the  offense,  or  to  affect  the  credit  of  any  other  witness.  I 
do  not  understand  the  objection  as  going  against  any  evidence  of  the  appear- 
ance and  condition  of  the  female  at  the  time,  but  only  as  against  commu- 
nications made  by  her  to  the  witness,  by  which  she  informed  him  of  particular 
injuries  inflicted  upon  her,  tending  to  prove  forcible  sexual  connection,  or  from 
which  it  could  properly  be  inferred.      The  People  v.  M'  Gee,  1  Denio,  22. 

It  should,  however,  be  understood  that  I  do  not  place  my  opinion  as  to  the 
admissibility  of  the  witness  objected  to,  upon  the  question  whether  the  female 
witness  was  competent  to  testify  or  not.  In  either  case  I  consider  the  evidence 
inadmissible  upon  principle.  The  view  I  have  taken  of  it,  I  think  is  sustained 
by  recent  cases  in  the  English  Courts.  Reg.  v.  Gutridge,  9  Carr.  &  Payne,  471 ; 
Reg.  V.  Megson,  id.  428 ;  and  I  do  not  doubt  that  the  true  rule  is,  that  when  the 
person  upon  whom  the  offense  is  charged  to  have  been  committed,  is  incompe- 
tent by  reason  of  infancy,  idiocy,  insanity,  and  the  like,  to  be  sworn  and  give 
evidence  as  a  witness,  that  no  evidence  of  the  assertions  or  declarations  of  such 
person,  descriptive  of  the  offense,  or  the  offender,  can  be  received  in  evidence; 
and  that  the  declarations  of  the  person  upon  whom  the  injury  has  been- inflicted 
in  relation  to  it  are  only  proper  to  be  given  in  evidence  to  affect  the  credibility 
of  the  person,  after  having  testified  in  the  cause.  I  think  the  objection  was  well 
taken.     The  People  v.  M'  Gee,  1  Denio,  24. 


206  ECCLESIASTICAL  LAW. 

ing  terror  in  the  community.  The  complaints  of  terror,  made 
hy  the  persons  professing  to  be  alarmed,  Avcre  permitted  to  be 
proved  by  a  witness  who  heai'd  them  without  calling  the  persons 
themselves.^ 

Under  this  head  may  be  considered  evidence,  although  in  the 
nature  of  hearsay,  which  is  admitted  in  cases  of  pedigree.  The 
term  may  include  cases  involving  parentage  or  descent  of  an  indi- 
vidual, and  in  order  to  ascertain  this  fact,  it  often  becomes 
material  to  determine  how  the  individual  who  is  the  subject  of 
investigation  Avas  regarded  by  those  who  are  interested  in  him, 
or  those  who  sustain  relationship  toward  him,  either  by  blood  or 
affinity.  In  some  of  the  earlier  cases,  the  declarations  of  serv- 
ants, and  even  of  neighbors,  were  admitted;  but  it  is  now  settled 
that  hearsay  evidence  in  cases  of  pedigree  is  only  admitted  upon 
the  ground  of  the  interest  of  the  declarants  in  the  person  from 
whom  the  descent  is  claimed,  and  their  consequent  interest  in 
knowing  the  connection  of  the  family.  The  rule  of  admission  is 
now  restricted  to  the  declarations  of  deceased  persons  who  were 
related  by  blood  or  marriage  to  the  person,  and,  therefore,  inter- 
ested in  the  succession  in  question ;  and  the  general  repute  or 
declarations  of  the  family,  proved  by  the  testimony  of  a  surviv- 
ing member  of  it,  or  any  other  competent  witness,  has  been  held 
admissible.^ 

^  Regimen  v.  Vincent^  et  al.  i)  C.  &  P.  275. 

2  In  almost  all  the  books  which  treat  on  the  subject  of  evidence  it  is  laid  down 
that  the  register  of  births,  marriages,  and  burials  is  competent  evidence,  and 
wherever  an  original  is  of  a  public  nature  and  admissible  in  evidence,  an  ex- 
amined copy  will  be  equally  admitted.  Phil.  320,  30(5;  Peak.  86;  Bull.  N.  P. 
217.  This  rule  is  necessary  as  well  for  the  security  of  the  instrument  as  for  the 
convenience  of  the  public.  In  addition  to  this,  the  hearsay  evidence  of  pedigree 
was  competent  and  of  itself  sufficient. 

Baron  Gilbert,  in  his  Treatise  on  Evidence,  112,  lays  down  the  rule  that 
hearsay  is  good  evidence  to  prove  who  is  the  grandfather,  when  he  married,  what 
children  he  had,  of  which  it  is  not  reasonable  to  suppose  the  party  has  better 
evidence.  Bogert  testified  that  from  conversation  in  his  family  and  among  his 
relations  from  his  infancy  he  always  understt)()d  and  had  been  informed  that 
Magdalena  Pelts  was  the  daughter  of  one  Simon  Appel,  and  that  Simon  was  the 
oldest  son  of  one  William  Appel.  Testimony  as  to  pedigree  is  not  to  be  tested 
by  the  ordinary  rules  of  evidence ;  it  forms  an  e-xception  to  the  general  rule. 
Hence  it  is,  that  any  thing  which  shows  a  general  reputation  is  admissible  to  es- 
tablish it.  Peak.  9.  In  Cowp.  591  {Goodright  v.  Moss),  Ld.  Mansfield  held 
that  tradition  is  sufficient  in  point  of  pedigree.     Ld.  Keiiyon  observed,  in  the 


HEARSAY  EVIDENCE.  207 


The  term  pedigree  embraces  descent  and  relation.slilp,  and 
also  the  facts  of  birth,  marriage,  and  deatli,  and  the  time  when 
those  events  occurred ;  also  an  entry  made  by  a  deceased  parent 
or  other  relative  in  a  Bible,  family  missal,  or  any  other  book,  or 
in  any  document  or  paper,  stating  the  fact;  and  the  date  of  the 
marriage,  birth,  or  death  of  a  child  or  other  relative  is  regarded 
as  a  declaration  of  such  parent  or  relative  in  a  matter  of  pedigree ; 
and  this  doctrme  has  been  held  to  warrant  the  admission  of  decla- 
rations made  by  a  person  since  deceased,  as  to  where  his  family 
came  from  and  of  what  place  his  father  was  designated.  Tiie 
correspondence  of  deceased  members  of  the  family  is  receivable 
in  evidence;  also  recitals  in  family  deeds,  marriage  settlements, 
wills, .and  other  solemn  acts,  are  regarded  as  original  evidence; 
affidavits  made  several  years  before  to  prove  pedigree  by  official 
requirement  and  prior  to  any  Us  mota  are  admissible ;  engravings 
upon  rings,  and  charts  of  pedigree  hanging  up  in  family  man- 
sions or  found  in  family  documents,  are  receivable  in  evidence  ; 
inscriptions  upon  tombstones  or  other  funeral  monuments,  inscrip- 

case  of  The  King  v.  The  Inhahitants  of  Enswell  (3  T.  R.  723):  "  I  admit  that 
the  declarations  of  the  members  of  a  familj^,  and  perhaps  of  others  living  in 
habits  of  intimacy  with  them,  are  received  in  evidence  as  to  pedigree  ;  but  evi- 
dence of  what  a  mere  stranger  has  said  has  ever  been  rejected  in  such  cases." 
This  doctrine  was  also  sanctioned  by  this  Court  in  Jackson  v.  Cooley  (8  John.  128). 
In  Jackson  v.  Boneham  (15  John.  226),  a  sworn  copy  of  the  records  of  the  town 
of  Stonington,  which  contained  the  date  of  the  marriage  of  the  parents  of  the 
lessors  and  the  time  of  the  birth  of  their  children,  was  admitted.  In  the  opinion 
delivered  by  Thompson,  Ch.  J.,  he  says :  "  "We  do  not  perceive  any  objection  to 
the  admission  of  a  sworn  copy  of  the  records  as  evidence  of  the  fiimily."  Jack- 
son V.  King,  5  Cowen,  238,  239. 

Spencer,  Chief- Justice,  delivered  the  opinion  of  the  Court.  Mr.  Justice 
Le  Blanc,  in  Higham  v.  Eidgu-ay  (10  East,  120),  lays  down  the  rule  of  evidence 
in  cases  of  pedigree  with  perspicuity,  and  places  it  on  a  reasonable  ground.  He 
considers  it  as  a  departure  from  the  strict  rules  of  evidence  on  account  of  the 
great  difficulty  of  proving  remote  facts  in  the  ordinary  way  by  living  witnesses, 
"  and  on  this  ground,"  he  says,  "  hearsay  and  reputation  (which  latter  is  the 
hearsay  of  those  who  may  be  supposed  to  have  known  the  fact  handed  down  from 
one  to  another),  have  been  admitted  as  evidence  in  cases  of  pedigree."  "The 
tradition,"  says  Lord  Eldon,  in  Whitelock  and  Baker  (13  Vesey,  514),  "must  be 
from  persons  having  such  a  connection  with  the  party  to  whom  it  relates  that 
it  is  natural  and  likely,  from  their  domestic  habits  and  connections,  that  they 
are  speaking  the  truth  and  that  they  could  not  be  mistaken."  Jackson  v.  Broicner, 
18  John.  38 ;  Chatman  v.  Chatman,  2  Cowen,  347 ;  Waldron  v.  TuWe,  4  New 
Hamp.  371. 


208  ECCLESIASTICAL  LAW. 

tions  upon  coat  of  arras,  have  soraetimes  been  relied  on  in  ques- 
tions of  pedigree.  This  evidence  is  admitted  upon  the  presumed 
fact  that  the  relatives  of  the  family  Avonid  not  permit  an  inscrip- 
tion without  foundation  to  remain,  and  that  a  person  would  not 
wear  a  ring^  with  an  error  on  it.  Mural  and  other  funeral  in- 
scriptions  are  provable  by  copies  or  other  secondary  evidence; 
but  their  weight  as  evidence  depends  much  on  the  authority 
under  which  they  are  made  and  the  distance  of  time  between 
their  erection  and  the  events  they  commemorate.  The  credit  of 
monumental  inscriptions,  however,  may  always  be  impeached, 
and  their  evidence  seems  peculiarly  open  to  attack,  not  only  on 
account  of  the  great  facility  for  forgery,  but  also  because  the 
preparation  of  them  is  often  committed  to  executors  or  other 
members  of  the  family.^ 

The  tacit  recognition  of  relationship  and  the  disposition  and  de- 
volution of  property  are  admissible  evidence.  And  from  such  evi- 
dence the  opinions  and  belief  of  the  family  may  be  inferred;  thus, 
where  a  father  is  proved  to  have  brought  up  the  party  as  his  legi- 
timate son,^  this  amounts  to  a  daily  assertion  that  the  son  is  legi- 
timate.^ So  the  declaration  of  a  person  since  deceased  that  he  was 
going  to  visit  his  relatives  at  a  particular  place  was  held  admissi- 
ble evidence  that  the  family  had  relatives  at  that  place.     It  is  fre- 

^  There  are  several  well  known  instances  mentioned  in  Collins  on  Barroney's, 
page  303  and  note,  of  mistakes  or  misstatements  as  to  the  time  of  birth  and 
time  of  death,  and  it  is  evident  that  this  species  of  evidence  is  not  conclusive,  but 
is  onl}'  prima  facie  evidence  of  the  facts. 

^  The  said  John  Reed  was  the  reputed  son  of  Andrew  Reed,  but  there  was  no 
direct  evidence  of  the  marriage  of  Andrew  with  the  mother  of  John.  The  said 
Andrew  was  one  of  the  first  settlers  at  Boothbay,  and  came  to  that  place  with  a 
Woman  whom  ho  called  his  wife,  and  resided  there  at  the  incorporation  of  the 
town.  He  and  the  mother  of  John  Reed  lived  together  in  good  reputation  as 
man  and  wife,  and  the  said  John  was  one  of  the  said  Andrew's  family — was  re- 
ceived and  spoken  of  as  his  son,  and  treated  as  his  other  children  were.  Iliis 
being  the  only  question  in  the  case,  the  judge  directed  the  jury  that  they  might 
lawfully  presume  the  said  John  Reed  to  be  the  legitimate  son  of  Andrew  Reed 
xipon  this  evidence  of  reputation  ;  and  thereupon  the  defendants  submitted  to  a 
verdict,  the  judge  consenting  to  reserve  the  question  as  to  the  legal  effect  of  this 
evidence  for  the  consideration  of  the  Court.  By  the  Court. — The  jury  might 
lawfully  infer  a  legal  marriage  from  the  evidence  at  the  trial;  a  long  continued 
cohabitation  is,  in  fact,  one  usual  evidence  of  a  marriage.  The  Inhabitants  of 
Newburt/port  v.  The  Inhabitants  of  Boothbay,  9  Mass.  414. 

^Berkley  Peerage  Case,  4  Campb.  416. 


HEARSAY  EVIDENCE.  209 


quently  said  that  general  reputation  is  admissible  to  establish  the 
fact  of  the  marriage  of  the  parties.  Evidence  of  the  parties 
being  received  into  society  as  man  and  wife,  and  being  visited  by 
respectable  families  in  the  neighborhood  in  which  they  resided, 
and  of  their  addressing  each  other  as  persons  actually  married, 
and  of  their  attending  Church  and  other  public  places  together  as 
husband  and  wife,  are  admissible  as  evidence.  So  where  a  gen- 
tleman introduced  a  female  who  was  previously  living  with  him 
as  his  housekeeper  to  his  friends  as  his  wife,  and  from  that  time 
for  the  period  of  eleven  years  continued  to  live  with  her  as  his 
wife,  holding  her  out  to  the  world  as  sustaining  that  relation  to  him 
and  having  several  children  by  her  who  were  called  by  his  name  ; 
held  that  these  facts  were  sufficient  to  authorize  a  court  or  jury  to 
presume  an  actual  marriage  between  the  parties  by  a  contract  in 
j)rcsenti^  at  the  commencement  of  such  matrimonial  cohabitation. 
The  acts  and  declarations  of  a  man  and  of  a  woman,  and  other 
attending  circumstances^  during  their  cohabitation  together,  being- 
part  of  the  res  gestce,  are  proper  evidence^  to  show  the  character 

^  For  it.  is  now  a  settled  rule  of  the  common  law  which  was  brought  into  this 
State  by  its  first  English  settlers,  and  which  was  probably  the  same  among  the 
ancient  Protestant  Dutch  inhabitants,  that  any  mutual  agreement  between  the 
parties  to  be  husband  and  wife  in  presenii,  especially  where  it  is  followed  by  co- 
habitation, constitutes  a  valid  and  binding  marriage,  if  there  is  no  legal  disability 
on  the  part  of  either  to  contract  matrimony.  2  Kent's  Com.  SI ;  Bose  v.  Clarl; 
8  Paige,  580. 

-  Declarations  of  parties  and  other  attending  circumstances,  in  order  to  ren- 
der them  admissible  in  evidence  as  a  part  of  the  res  gestce,  must  be  contempo- 
raneous with  the  main  fact  under  consideration  and  to  which  they  are  intended 
to  give  character.  Thus  if  a  man  and  woman  are  cohabiting  together,  and  the 
question  to  be  decided  is  whether  the  character  of  her  intercourse  with  him  is 
matrimonial  or  meretricious,  the  declarations  of  the  parties  during  the  existence 
of  such  intercourse,  the  fact  of  their  appearing  in  public  with  each  other  as 
husband  and  wife,  of  their  visiting  in  respectable  families,  and  of  their  being 
treated  by  their  acquaintances  and  spoken  of  by  them  as  sustaining  that  relation 
to  each  other,  constitutes  a  part  of  the  res  gestce,  showing  the  character  of  that  in- 
tercourse to  be  matrimonial  and  virtuous;  and  contemporaneous  declarations 
and  attending  circumstances  of  a  different  character  would  be  legal  evidence 
from  which  the  conclusion  might  legitimately  be  drawn  that  the  intercourse  be- 
tween the  parties  was  illicit  and  dishonorable.     9  Paige,  616. 

^  It  is  stated  that  there  was  not  proof  of  any  subsequent  marriage  in  fact, 
and  that  no  solemnization  of  marriage  was  shown  to  have  taken  place.  But 
proof  of  an  actual  marriage  was  not  necessary.  Such  strict  proof  is  only  re- 
quired in  prosecutions  for  bigamv  and  in  actions  for  criminal  conversation.     4 


210  ECCLESIASTICAL  LAW, 


of  their  intercourse,  whether  it  was  matrimonial  or  meretrecious. 
But  general  reputation  as  to  the  character  of  such  intercourse 
after  it  liad  ceased,  or  the  declarations  and  admissions  of  the 
parties  made  subsequent  to  that  time,  are  not  legal  evidence  to 
rebut  the  presumption  of  an  actual  marriage  arising  from  such 
cohabitation^  and  other  acts,  and  to  establish  the  fact  that  their 
children  are  legitimate. 

CHAPTER  XIV. 

RES   GESTJi:. 

We  have  had  occasion  frequently  to  refer  to  the  declarations 
and  admissions  of  parties  as  constituting  a  part  of  the  res  gestce, 
but  have  given  no  definition  of  the  term.  In  order  to  be  a  part 
of  the  res  gcsfcr,  or  the  subject  matter  or  thing  done,  the  declara- 
tions or  admissions  must  have  been  made  at  the  time  the  act  was 
performed  which  they  are  supposed  to  characterize,  and  must  be 
well  calculated  to  unfold  the  nature  and  quality  of  the  facts  they 
are  intended  to  explain,  and  so  to  harmonize  with  them  as  obvi- 
ousl}^  to  constitute  one  transaction.  Thus,  when  it  is  necessary 
in  the  course  of  a  cause  to  inquire  into  the  nature  of  a  particular 
act,  or  the  intention  of  the  person  avIio  did  the  act,  proof  of  what 

Burr.  2057;  Doug.  171.  A  marriage  may  be  proved  in  other  cases  from  co- 
habitation, reputation,  acl^nowledjrment  of  the  parties,  reception  in  the  family, 
and  other  circumstances  from  which  a  marriage  may  be  inferred.  4  Burr.  2057; 
1  Esp.  Cases,  21.S;  2  Bl.  Rep.  877  ;  Peake's  Cases,  N.  P.  23L  No  formal 
solemnization  of  marriage  was  requisite.  A  contract  of  marriage  made  per 
verba  de  presenii  amounted  to  an  actual  marriage,  and  is  as  valid  as  if  made  in 
facie  eccleaice.  0  Mod.  155;  2  Salic.  A?>1 ;  Peake's  Cases,  231;  Fenton  v.  Feed, 
4  John.  5:1 

'  No  peculiar  form  of  words  is  necessary  to  such  a  contract.  In  Morton  v. 
Fenn  (8  Doug.  21 1 ),  it  appeared  that  the  defendant  promised  to  marry  the  plain- 
tiff if  she  would  go  to  bed  with  him  that  night,  which  she  did,  and  lived  after- 
wards with  him  a  considerable  time.  Lord  Mansfield  remarked,  that  before  the 
Marriage  Act  this  would  have  been  a  good  marriage,  and  the  children  legitimate 
by  the  rules  of  the  common  law.  Holt,  C.  .L,  in  Wigmore's  case,  2  Salk,  438, 
S.  P.;  Diimarfili/  v.  Fixh/i/,  4  Marsh.  (Ken.)  Rep.  372,  S.  P.  Thus  a  contract 
in  words  merely  executory,  followed  by  the  act  of  the  parties  in  lying  together 
on  the  faith  of  such  contract,  is  equivalent  to  words  of  present  import.  The 
circumstances  are  to  be  taken  as  giving  a  construction  to  the  words  and  render- 
ing thcra  presently  operative.     3  Marsh,  tii.  supra.;   S/ai'r  v.  Peck,  1  Hill,  274. 


RES  GESTAE.  211 


tlie  person  said  at  tlie  time  of  doing  it  is  admissible  evidence  as 
part  of  tlie  res  gcstce  for  tlie  purpose  of  showing  its  true  cliarac- 
ter.  On  an  indictment  for  a  rape,  for  example,  what  the  girl 
said  so  recently  after  the  fact  as  to  exclude  the  possibility  of 
practicing  on  her,  has  been  held  to  be  admissible  as  a  part  of  the 
transaction.-^  Where  a  party  on  removing  an  old  fence  put  down 
a  stone  in  one  of  the  post-holes,  and  the  next  day  declared  that 

^  Obscene  or  slanderous  conversations,  serious  arguments  against  the  truth 
of  revelation,  and  the  like,  might  have  been  pertinent,  as  we  receive  arguments 
in  favor  of  atheism  coming  from  a  witness  to  show  his  incompetency  from  defect 
of  religious  principle.  Such  declarations  are  a  part  of  the  res  gestce.  But  I  am 
not  prepared  to  concede  that  when  the  people  have  instituted  a  criminal  prose- 
cution they  lie  in  any  case  at  the  mercy  of  mere  naked  admissions  made  by  the 
party  injured,  when  they  do  not  introduce  him  as  a  witness.  Barthelemij  v.  The 
Feople,  2  Hill,  257. 

It  is  undoubtedly  true,  as  a  general  rule  of  evidence,  that  the  statements  of 
a  party  in  regard  to  the  subject  matter  of  his  own  suit  are  inadmissible  unless 
introduced  by  his  adversary.  But  this  rule  is  necessarily  subject  to  many  excep- 
tions, and  the  admission  or  rejection  of  such  testimony  must,  in  some  measure, 
depend  upon,  and  be  governed  by,  the  nature  of  the  case  and  of  the  facts  to  be 
proven.  Thus,  it  has  been  frequently  held,  that  when  one  enters  into  land  in 
order  to  take  advantage  of  a  forfeiture,  to  forclose  a  mortgage,  to  defeat  a  dis- 
seisin, or  the  like  ;  or  where  one  changes  his  residence,  or  is  upon  a  journey,  or 
leaves  his  home,  or  does  any  act  material  to  be  understood,  his  declarations 
made  at  the  time  of  the  transaction  and  expressive  of  its  character,  motive,  or 
object,  are  regarded  as  ''verbal  acts  indicating  a  present  purpose  and  intention," 
and  are  therefore  admitted  in  proof  like  any  other  material  facts,  leaving  their 
effect  to  be  governed  by  other  rules  of  evidences.  So  the  state  of  mind,  senti- 
ments, or  disposition  of  a  person  at  any  particular  period  may  be  ascer- 
tained from  his  declarations  and  conversations  at  that  time.  And  no  ob- 
jection can  exist  to  the  admissibility  of  such  evidence  so  long  as  the  statements 
and  declarations  thus  introduced  are  concomitant  with,  and  explanatory  of,  the 
act  or  occurrence  to  which  they  relate.  In  Sessions  v.  Little,  9  N.  H.  Rep.  271, 
it  is  held  that  "where  evidence  of  an  act  done  by  a  party  is  admissible,  his  dec- 
larations made  at  the  time  having  a  tendency  to  elucidate  or  give  character  to 
the  act,  and  which  may  derive  a  degree  of  credit  from  the  act  itself,  are  also  ad- 
missible as  part  of  the  res  geaice."  But  the  reason  of  this  rule  by  no  means  ap 
plies  to  such  statements  as  are  merely  narrative  of  a  past  occurrence,  and  they 
are  clearly  inadmissible.      Wet7))07-e  v.  Mell,  1  Ohio  S.  27. 

The  conduct  and  exclamations  of  passengers  in  the  cars  were  not  improperly 
admitted  as  tending  to  show  how  the  circumstances  of  apparent  danger  affected 
every  one,  and  to  some  degree  explain  defendant's  conduct  and  vindicate  from 
rashness  and  imprudence  from  undue  alarm.  It  is  impossible  for  a  witness  to 
convey  such  scenes  to  the  mind  and  their  effect  and  influence  upon  it.  Such 
general  conduct,  with  the  exclamations  involuntarily  thrown  out  by  appearances 


212  ECCLESIASTICAL  LAW. 

lie  placed  it  there  as  a  boundary,  it  was  held,  that  this  declara- 
tion not  constituting  a  part  of  the  act  done,  was  inadmissible 
in  his  favor.  ^  But  in  an  action  by  a  bailor  against  the  bailee 
for  loss  caused  by  his  negligence,  the  declarations  of  the  bailee 
contemporaneous  with  the  loss,  were  admissible  in  his  favor  to 
show  the  nature  of  his  loss,^ 

The  declaration  of  a  person  wounded  and  bleeding,  made  im- 
mediately after  the  occurrence,  that  the  defendant  had  stabbed 
her,  though  made  after  such  an  interval  of  time  as  to  allow  her 
to  go  from  her  room  up-stairs  into  another  room,  was,  after  her 
death,  held  to  be  admissible  as  part  of  the  res  c/estcej  she  having 
accompanied  her  declaration  with  a  request  for  assistance.  Her 
declarations  might  have  been  admissible,  however,  upon  the 
ground  of  a  dying  declaration;  probably  the  latter  consideration, 
while  it  is  not  referred  to  by  the  Court,  had  some  influence  in  in- 
ducing the  decision.^ 

Upon  an  indictment  for  keeping  a  house  of  ill  fame,  evidence 
of  conversations  held  by  men  immediately  upon  coming  out  of  the 
house  and  upon  the  sidewalk  in  front  thereot,  but  not  in  the  pres- 
ence of  the  defendants  nor  any  of  the  inmates,  as  to  what  had 
taken  place  within  the  house,  was  held  to  be  inadmissible  as  part 
of  the  res  gestce,  but  was  admissible  as  tending  to  show  the  char- 
acter of  the  visitors  to  the  house. ^  It  is  always  a  question  of 
law  for  the  Court  or  other  presiding  officer  to  decide  what  facts 
and  circumstances  in  particular  cases  come  within  the  import  of 
the  term  res  gestae.^ 

of  imminent  peril,  may  be  regarded  as  a  part  of  the  res  gesicE  for  this  purpose. 
Galena  and  Chicago  Union  It.  R.  Co.  v.  Fay,  I(i  Ills.  568. 

It  is  only  when  the  thing  done  is  equivocal  and  it  is  necessary  to  render  its 
meaning  clear  and  expressive  of  a  motive  or  object,  that  it  is  competent  to 
prove  declarations  accompanying  it  as  falling  within  the  class  of  res  gestce  4 
Gray,  584;   2  Stark.  Cas.  241  ;   I  Stark  Ev.  47;   1  Phil  Ev.  218. 

*  Nnges  v.  Ward,  9  Conn.  250. 
^  Story  on  Bailments,  Sec.  339. 

^  Commomoealth  v.  Pike,  3  Cush.  184. 

*  Commonwealth  v.  JJartvood,  4  Gray,  41. 

'  It  is  perhaps  not  possible  to  lay  down  any  general  rule  as  to  what  is  a  part 
of  the  res  gestae  which  will  be  decisive  of  the  question  in  every  case  in  which  it 
may  be  presented  by  the  ever  varying  phases  of  human  aflaira.  The  judicial 
mind  will  be  compelled  frequently  to  apply  the  general  principle  and  deduce  the 
proper  conclusion.     The  circum.stances  to  which  we  have  just  adverted  furnish 


RES  GEST.'E.  213 


In  order  that  declarations  and  admissions  may  be  received  in 
evidence  as  part  of  the  res  gestce^  they  must  grow  out  of  the  main 
transaction;  but  they  are  not  necessarily  confined  to  any  particular 

the  tests  by  the  light  of  which  the  question,  whenever  it  arises,  must  receive  its 
soUition.  1  Wall.  (')42;  Bruce  v.  IIu7-Iei/,  1  Starkie,  20;  Murray  v.  Beihiine,  1 
Wendell,  190  ;  Cox  v.  Gordon,  2  Deveneux,  522;  Enos  v.  Trdtle,  3  Conn.  250: 
Allan  V.  Duncan,  11  Pick.  309;   B.  &  W.  E  J?.  Corp.  v.  Bona,  1  Gray,  H3. 

The  general  rule  is,  that  declarations  to  become  a  part  of  the  res  gestm  must 
accompany  the  act  which  they  are  supposed  to  characterize,  and  must  so  harmo- 
nize as  to  be  obviously  one  transaction.  Moore  v.  Meacham,  10  N.  Y.  210.  1 
think  that  the  declaration  of  the  agent  in  relation  to  property  intru.sted  to  him  in 
the  usual  course  of  business  as  to  the  reasons  of  the  delay  in  the  transportation, 
and  even  as  to  the  contract  made  with  him  in  reference  to  the  carriage,  admissi- 
ble as  a  part  of  the  res  gestce  of  the  particular  agency.     8  N.  Y.  503. 

It  was  very  truly  stated  in  Pool  v.  Bridges  (4  Pick.  378),  that  it  is  difficult 
to  lay  down  any  precise  general  rule  as  to  the  cases  in  which  declarations  are 
admissible  as  part  of  the  res  gesfce  and  when  they  must  be  rejected  as  the  mere 
assertions  of  the  part_y.     11  Pick.  309. 

It  is  often  a  difficult  question  to  decide  what  declarations  mayor  may  not  be 
admitted  in  evidence  as  part  of  the  res  gestce;  but  the  test  seems  to  be,  as  laid 
down  in  1  Stark,  on  Evid.  47,  "If  the  declaration  has  no  tendency  to  illustrate 
the  question  except  as  a  mere  abstract  statement  detached  from  any  particular 
fact  in  dispute,  and  depending  for  its  effect  entirely  upon  the  credit  of  the  person 
making  the  declaration,  it  is  not  admissible;  but  if  any  importance  can  be  at- 
tached to  it  as  a  circumstance  derivins  a  degree  of  credit  from  its  connection 
with  the  circumstances  of  the  case  independently  of  any  credit  to  be  attached  to 
the  speaker  or  writer,  then  the  declaration  is  admissible."  Thus,  if  the  declara- 
tion is  in  itself  a  fact  in  the  transaction,  or  is  made  by  a  party  while  doing  an 
act,  and  serves  to  explain  it,  it  is  to  be  received  in  evidence  as  part  of  the  res 
gestce.  But  a  recital  of  past  transactions  is  not  admissible,  although  it  may  have 
some  relation  to  the  act  which  the  person  may  be  doing  when  he  makes  the  dec- 
laration.    Haynes  v  Butter,   24  Pick.  245. 

The  proposed  evidence  of  the  declarations  of  Stanwood  was  clearly  incom- 
petent. The  declarations  of  a  party  to  an  act  are,  under  proper  limitations, 
competent  evidence  to  show  the  intention  of  such  party  in  reference  to  such  act. 
If  made  at  the  same  time  with  the  act,  they  may  be  considered  as  a  part  of  the 
res  gestce,  and  so  admissible.  Somewhat  greater  latitude  is  allowed  in  reference 
to  the  time  of  making  such  declarations  where  the  question  relates  to  the  domicile 
of  the  party  at  a  particular  period.  Inhabitants  of  Salem  v.  Inhabitants  of 
Lynn,  13  Mete.  544. 

The  Court  say :  "  The  general  rule  undoubtedly  is,  that  a  party  can  not  give 
in  evidence  his  own  declarations  in  his  favor  unless  they  accompany  some  act  and 
are  a  part  of  the  res  gestce."     Kilhvrn  v.  Bennett,  3  Mete.  201. 

Shaw,  Chief  Justice,  in  delivering  the  opinion  said:  "The  next  question  is 
upon  the  admission  of  several  letters  of  the  plaintiff.  They  were  offered  on  the 
ground  that  they  were  declarations  of  the  plaintiff  accompanied  with  his  acts  of 

15 


214  ECCLESIASTICAL  LAW, 

period  of  time  ;  they  are,  however,  dependent  upon  the  nature 
and  cliaracter  of  tlie  transaction.  Perhaps  the  most  common  and 
bj  far  the  largest  class  of  cases  in  Avhich  declarations  are  admis- 
sible in  evidence  are  those  in  which  the  motive  or  intent  of  the 
mind  with  which  any  particular  act  is  done  is  the  subject.  It 
was  upon  this  principle  that  the  cry  of 'the  mob  was  received  in 
evidence  in  the  trial  of  Lord  George  Gordon,  who  was  tried  for 
treason  committed,  as  Avas  charged,  by  levying  war  against  the 
king,  which  consisted  in  fact,  as  alleged,  in  attempting  to  effect 
by  force  a  repeal  of  an  act  of  Parliament  which  had  been  passed 
in  favor  of  Catholics.  The  prisoner  presented  a  petition  to  Par- 
liament for  a  repeal  of  the  act,  and  in  doing  so  he  was  accom- 
panied by  many  thousands  of  people,  who  in  loud,  boisterous,  and 
menacing  manner  took  possession  of  the  lobby  and  the  avenues 
leadino-  to  the  House  of  Parliament  and  insulted  and  ill  treated 
some  members  of  each  House,  and  not  only  refused  to  retire,  but 
insisted  upon  a  repeal  of  the  offensive  act,  and  kept  up  the  cry, 
'^  Repeal,  repeal !  No  Popery  !  "  These  cries,  said  the  Court, 
manifestly  formed  a  part  of  the  res  gesta',  and  tended  to  explain 
the  purpose  and  intention  of  the  multitude  which  had  been  called 
together  by  the  prisoner,  and  Avere,  therefore,  admissible  in  evi- 
dence. In  most  cases  Avhere  the  state  of  the  mind,  sentiment,  or 
disposition  of  a  person  at  a  particular  period  become  pertinent 
topics  of  inquiry  in  course  of  legal  proceedings,  resort  may  be 


removal  from  Boston  to  Edinburgh,  addressed  to  liis  agent  in  the  ordinarj'  course 
of  business,  and  were  therefore,  as  res  gesta;,  good  evidence  of  his  intentions 
connected  with  those  acts.  The  Court  are  of  opinion  that  the  letter  of  October 
27,  18.'57,  was  admissible  on  this  ground.  The  taxes  are  assessed  as  of  1st  May, 
l)ut  it  is  well  known  that  the  assessment  is  made  in  the  course  of  the  Summer, 
and  the  tax-bills  issued  in  September,  Thoi-e  is  no  ]iroof  from  the  tenor  of  the 
letter  or  other  evidence  that  at  that  time  tlie  jilaintifl'  knew  that  the  tax  had  been 
assessed  upon  him.  It  was  written,  therefore,  l)efore  any  controversy  and  before 
lie  had  any  interest  to  make  evidence  for  himself  on  this  sultject.  Roe  v.  Ark- 
v:rif/ht,  5  Car.  &  P.  575.  The  admissibility  of  the  latter  letters  is  much  more 
f|uestionable.  The  admission  of  declarations,  either  written  or  verbal,  in  con- 
nection with  acts  done,  and  giving  a  character  to  such  acts,  depends  much  on 
circumstances  and  upon  the  nearness  or  distance  of  the  time  of  the  declarations 
made  to  the  act  done.  The  most  common  instances  arise  in  cases  where  certain 
acts  done  with  certain  inlentii)iis  constitute  acts  of  bankruptcy,  and  the  intention 
is  the  main  question;  declarations  of  the  bankrupt,  verbal  or  written,  at  a  near 
time  of  the  act  done,  are  admissible.    I'hovndyke  v.  City  of  Boston,  1  Mete.  247. 


RES  GEST/E.  215 


liad  to  declarations  and  conversations.  They  seem,  under  such 
circumstances,  to  become  a  part  of  the  res  gedce.  An  obvious 
instance  is  the  case  of  alleged  insanity.'  For  illustration:  If  it 
should  become  a  question  whether  the  party  knew  the  multiplica- 
tion table,  it  could  only  be  established  by  having  him  repeat  it. 
What  he  said,  therefore,  must  be  resorted  to  in  order  to  prove 
his  knowledge  of  it.  The  necessity  of  sometimes  allowing  this 
species  of  evidence,  even  in  favor  of  the  declarant,  has  been 
recognized  in  some  of  the  cases.  ^ 

Where  a  witness  swore  that  the  testator  had  made  confidential 
communications  to  him  relating  to  the  family  affairs  of  the  former, 
the  declarations  of  the  testator,  showing  that  he  had  suspicions 
of  the  honesty  of  the  witness,  were  admitted  in  reply.  ''  These," 
said  Tillman,  Chief-Justice,  "were  acts,  not  hearsay;  they  show 
a  want  of  confidence  and  an  improbability  that  the  family  con- 
cerns of  a  delicate  nature  should  have  been  committed  to  the 
witness."^ 

The  admission  of  declarations,  either  written  or  verbal,  in 
connection  with  acts  done  and  in  giving  character  to  such  acts, 
much  depends  upon  circumstances  and  upon  the  means  of  infor- 
mation, the  nearness  to  or  distance  between  the  act  and  the  dec- 
laration. Thus,  in  an  action  involving  the  question  whether  the 
plaintiff,  who  had  left  the  country  with  his  family,  was  afterwards 
liable  to  be  taxed  at  the  place  of  his  former  residence,  it  was  held 
that  a  letter  written  to  his  agent  in  that  place  expressing  his  in- 
tention to  remain  abroad  permanently,  was  admissible  in  evidence, 
if  such  letter  was  written  before  he  knew  that  a  tax  had  been 
assessed  upon  him,  though  written  after  the  assessment ;  but  such 
letter  would  not  have  been  admissible  in  evidence  if  written  after 
he  had  gained  a  knowledge  of  the  assessment  of  the  tax.**  The 
most  common  instance  arises  in  cases  where  a  certain  act,  being 
done  with  certain  intentions,  constitutes  an  act  of  insolvency  or 

1  United  States  v.  Sharp,  C.  C.  R.  118;   The  State  v.  Scott,  1  Hawks,  R.  2-1. 

^  Darby  s  Adm.  R.  v.  Rice,  2  Nott  &  M'Cord,  596. 

3  Lightner  v.  Wilce,  4  Serg.  &  Rawle,  283,  206,  207.  So  the  declarations  of 
a  person  sworn  as  a  witness  may  be  given  in  evidence  as  evincing  hostile  and 
malicious  feelings  toward  the  party  against  whom  he  testifies,  with  a  view  to 
shaking  his' credit.  Note  3  Cowen  &  Hill's  Notes  to  Phil.  Ev.  729,  730,  764, 
765,  and  the  cases  there  cited. 

*  Thorndyke  v.  City  of  Boston,  1  Mete.  2-17. 


21ti  ECCLESIASTICAL  LAW. 

bankruptc}'.  In  such  case  the  intention  is  the  main  question  in 
issue,  and  the  declarations  of  the  insolvent  or  bankrupt,  either 
written  or  verbal,  and  at  a  time  near  to  the  act  done,  are  admissible 
in  evidence.  So,  also,  where  a  person  enters  upon  lands  in  order 
to  take  advantage  of  the  forfeiture  to  defeat  a  disseizin,  to  for- 
close  a  mortgage,  or  the  like  ;  his  declarations  made  at  the  time 
of  the  transaction,  and  expressive  of  its  character,  motive,  or 
object,  are  regarded  as  verbal  acts,  and  are  admissible  in  evi- 
dence. The  declarations  of  persons  in  possession  of  lands,  or 
other  property,  as  we  have  previously  seen,  in  disparagement  of 
the  title  of  the  declarant,  are  admissible  in  evidence.^  Thus, 
upon  a  question  whether  a  deceased  person  had  a  settlement,  his 
declarations  that  he  had  no  deed  to  the  land,  but  that  he  had  a 
writing  entitling  him  to  a  deed,  was  admitted  to  rebut  the  pre- 
sumption arising  from  long  possession  by  himself  and  his  grantee 
that  he  was  seized  of  an  estate  in  freehold.  So  declarations  made 
by  a  person  under  whom  the  other  party  claims  after  the  declar- 
ant has  parted  with  his  right,  are  not  admissible  to  affect  any  one 
claiming  under  him.^      It  is  otherwise,  however,  where  the  dec- 

^  Marsh  v.  Meager^  1  Stark.  ."53. 

2  Sewall,  Judge,  said:  "The  ground  of  admitting  this  evidence  was,  that  the 
witness  spoke  to  the  fact  that  declarations  had  been  made  by  tlie  father,  which 
declarations  were  inconsistent  with  the  claim  and  title  of  the  demandant,  were 
made  at  a  time  when  no  controversy  existed  respecting  the  land  now  in  ques- 
tion, and  were  made  by  the  person  occupying  the  land  relative  to  tlie  nature  and 
extent  of  bis  occupancy  and  title.  But  no  case  has  been  found  where  the  dec- 
larations of  a  supposed  grantor  or  party  in  an  instrument,  and  who  may  be  con- 
sidered as  interested  at  the  time  to  declare  in  the  jiarticiilar  manner  testified  to, 
have  been  admitted  even  for  the  purpose  suggested;  and  although  we  find  pre- 
cedents in  controversies  respecting  last  wills  of  declarations  by  the  supposed  tes- 
tators received  in  evidence,  yet  we  find  no  instance  of  the  declarations  of  grantors 
in  deeds  admitted  as  evidence  under  circumstances  in  many  respects  similar. 
Bartlet  v.  Delprat  &  Al.  4  Mass.  707. 

The  defendant  offered  to  prove,  that  before  the  Cayuga  Eeservation  was  pur- 
chased of  the  State  in  17i)6,  John  Richard.son  told  his  mother  that  he  had  con- 
veyed the  premises  in  question  to  his  father,  William  Richardson,  which  evidence 
being  overruled,  the  defendant  offered  to  prove  the  loss  of  the  deed  by  proving 
that  lie  could  not  find  it  on  search;  that  he  called  on  William  Richardson,  who, 
on  search,  said  that  he  could  not  find  it,  and  had  given  it  to  the  defendant  with 
the  other  evidences  of  title;  and  that  William  Richardson  was  old  and  and  could 
not  conveniently  be  produced;  and  that  before  Watson's  judgment  against  J. 
Ricthardson,  and  before  the  contract  on  which  that  judgment  was  founded,  a 
parol  exchange  had  been  made  between  J.  and  W.  Rlcluirdson,  possession  taken 


I 


RES  GEST-^.  217 


larations  oftered  in  cvitleiice  -were  made  before  tlie  declarant 
parted  witli  his  right.  Where  a  foundation  has  been  laid  by  proof 
sufficient  in  the  opinion  of  the  Court  to  establish  the  foot  of  con- 
spiracy between  the  parties,  the  acts  and  declarations  of  one  of 
the  company  of  conspirators  in  regard  to  the  common  design 
may  be  offered  in  evidence  as  tending  to  establish  such  fact,  al- 
thougli  such  declarations  may  affect  his  fellows;  and  it  is  upon 
this  principle  that  every  one  Avho  enters  into  a  common  design  is 
deemed,  in  law,  a  party  to  every  act  which  had  or  may  be  done 
by  others  in  furtherance  of  such  common  design;  but  in  order  to 
make  such  declarations  evidence  against  any  but  the  declarant, 
the  common  purpose  or  design  in  furtherance  of  the  object  must 
be  established.  If  the  declarations  were  not  made  at  the  time 
or  during  the  pendency  of  the  criminal  enterprise,  and  in  further- 
ance of  its  objects,  and  are  mere  narratives  of  past  occurrences, 
they  are  not  admissible  against  any  but  the  declarant.  Thus, 
the  declarations  of  one  co-trespasser  where  several  are  jointly 
sued  together  with  him,  may  be  given  in  evidence;  but  if  such 
declarations  are  not  part  of  the  transaction  they  are  designed  to 
characterize,  they  should  be  restricted  to  the  party  making  them.^ 
Where  conversations  are  proved,  the  effect  of  the  evidence  upon 
other  than  the  declarant  will  depend  on  circumstances.  The 
same  principles  apply  to  the  acts  and  declarations  of  each  partner 
composing  the  partnership ;  they  are  presumed  to  join  or  unite  in 
the  prosecution  of  a  common  enterprise,  and  the  acts  and  dec- 
larations of  each  member  in  furtherance  of  the  common  object  of 
the  association,  if  within  the  scope  of  the  partnership  enterprise, 
is  regarded  in  law  as  the  act  of  all.  Each  partner,  by  the  very 
act  of  association,  is  constituted  the  agent  of  the  firm.  While 
the  firm  exists,  it  speaks  and  acts  by  its  members ;  but  after  the 

accordingly,  and  the  premises  recognized  by  J.  Bichardson,  to  be  the  property 
of  W.  Richardson.     All  this  evidence  was  overruled. 

Yates,  Judge,  said:  "The  evidence  was  properly  overruled.  There  can  be 
no  question  that  the  confessions  and  declarations  of  John  Richardson,  and  the 
parol  exchange  between  him  and  William  Richardson,  could  not  be  received  as 
evidence  of  title.  There  was  no  evidence  of  the  existence  of  a  deed,  and  the 
declarations  of  the  defendant  and  William  Richardson  of  ineffectual  searches  for 
it  could  not  avail  in  support  of  the  defendant's  claim."  Jackson  v.  Oris,  11 
John.  436,  437. 

1  Bex  v.  Hardi/,  24  Howell's  St.  tr.  451,  452,  453. 


21 S  ECCLESIASTICAL  LAW. 

dissolution^  of  tlie  copartnersliip  the  act  of  an  individual  mem- 
ber ceases  to  have  tliat  effect  unless  the  power  is  conferred  upon 
him  bj  the  articles  of  copartnership  ;  nor  can  one  partner  bind 
his  copartners  by  giving  a  note  after  the  dissolution  of  the  part- 
nership by  virtue  of  a  power  to  adjust  the  debts  of  the  firm  or  to 
settle  the  partnership  concerns,  unless  the  firm,  after  dissolution 
of  the  partnership,  consents  to  and  ratifies  tlie  act.  The  burthen 
of  proving  s^^ch  ratification  is  upon  the  party  setting  it  up.  ^ 

^  The  judge  also  rightly  rejected  all  the  statements  made  by  the  witness  Thur- 
ston to  the  plaintiffs  as  to  the  connection  of  E.  W.  Woodman  with  I.  F.  Wood- 
man, and  all  inquiries  made  by  the  plaintiffs  of  Thurston  as  to  the  credit  of  said 
firm  and  the  persons  of  whom  it  was  composed,  and  also  all  the  statements  made 
by  I.  F.  Woodman  to  Thurston  and  by  him  repeated  to  the  plaintiffs,  because  no 
proper  foundation  was  laid  to  render  such  evidence  admissible  as  against  E.  W.- 
Woodman.  The  authority  of  Thurston  and  I.  F.  Woodman  to  bind  E.  W. 
Woodman  by  their  statements  and  declarations  depended  entirely  upon  the  ex- 
istence of  the  copartnership.  Until  that  was  proved,  E.  W,  Woodman  was  not 
shown  to  have  had  any  connection  with  either  of  them  ;  and  as  that  was  the  very 
point  in  controversy  before  the  jury,  and  to  be  determined  by  their  verdict,  evi- 
dence which  could  be  admissible  only  upon  the  assumption  of  the  existence  of 
the  copartnership  was  clearly  incompetent  when  offered  to  prove  the  fact  upon 
which  its  competency  depended.  1  Green).  Ev.  §  177;  Collyer  on  Part.  -154; 
Tattle  y.  Cooper,  5  Pick.  414  ;  liobhins  v.  Willia7-d,  G  Pick.  464;  Dutton  and 
others  v.   Woodman  and  another,  9  Cush.  260. 

The  Court  said:  "The  question  was  whether  the  note  sued  was  a  partner- 
ship transaction  or  not.  If  it  had  been  proved  to  be  a  partnership  transaction, 
then  the  confessions  of  Robbins  would  have  been  evidence  ;  but  there  was  no 
evidence  of  that  fact,  and  therefore  as  to  the  note  the  defendants  were  not  co- 
partners, and  the  confessions  of  one  ought  not  to  be  admitted  to  the  prejudice  of 
another.  The  witness  proposed  to  be  examined  was  the  principal  actor  in  the 
fraud  complained  of  To  allow  him  to  tell  his  own  story  in  his  own  way,  and  to 
mislead  the  jury  by  an  artful  tale,  would  reflect  little  credit  on  the  wisdom  of  the 
law."     Tuttle  v.  Cooper,  5  Pick.  417. 

^  An  account  was  made  out  after  the  dissolution  of  the  copartnership,  but  in 
the  notice  of  dissolution  it  was  announced  to  the  public  that  the  defendant, 
Daniel,  was  authorized  to  adjust  all  accounts  relating  to  the  partnership.  With- 
out this  express  authority,  the  confession  of  one  partner  after  the  dissolution 
will  take  a  debt  out  of  the  statute.  The  acknowledgment  will  not,  of  itself,  be 
evidence  of  an  original  debt,  for  that  would  enable  one  party  to  bind  the  other  in 
new  contracts  (//acA7f'y  V.  Patrick,  ?,  Johns.  Rep.  .^I^e);  but  the  original  debt 
being  pioved  or  admitted,  the  confession  of  one  will  ))ind  the  other  so  as  to  pre- 
vent him  from  availing  himself  of  the  statute  of  limitations.  This  is  evident 
from  the  cases  of  Whitcomb  v.  Whitney  and  of  Jackson  v.  Fairhanlc  (Doug. 
652  ;  2  H.  Black,  340),  and  it  results,  necessarily,  from  the  power  given  to  adjust 
accounts.     6  John.  26H. 


RES  GEST.^.  219 


In  some  of  the  cases  a  distinction  is  strongly  taken,  and 
maintained  between  admissions  wliicli  go  to  establish  the  orig- 
inal existence  of  the  debt,  and  those  which  only  show  that  it 
has  never  been  paid,  but  that  it  still  remains  in  full  force. 
And  it  is  held  that  before  the  admission  of  a  partner  made 
after  the  dissolution  can  be  received,  the  debt  must  first  be 
proved  aliunde.^ 

Tiie  Supreme  Court  of  Massachusetts  held  that  the  confes- 
sions of  one  partner,  made  after  the  dissolution  of  a  })artnershi|), 
in  relation  to  a  demand  against  the  partnersliip  not  barred  by  the 
statute  of  limitation,  are  admissible,  though  not  conclusive  evi- 
dence against  the  other  })artner;  the  joint  liability  being  first 
proved   aliunde.'^      A    brief    reference   to   another   question   will 

It  has  been  repeatedly  held  in  this  Court,  that  though  one  partner  after  tlie 
dissolution  can  not  bind  the  other  by  any  new  contract,  yet  his  acknowledgment 
of  a  previous  debt,  due  from  the  partnership,  will  bind  the  other  partner  so  far 
as  to  prevent  him  from  availing  himself  of  the  statute  of  limitations.  It  is  ad- 
missible to  repel  the  presumption  of  payment  of  a  debt  which  is  shown  to  have 
once  existed  against  the  firm,  although  not  competent  to  create  a  new  debt. 
Hiihbard  v.  Elmer,  7  Wend.  44(5 ;   Lust  v.  Smith,  8  Barb.  570. 

^Owings  v.  Law,  3  Gill  &  John.  134-14'J ;   Shelion  v.  Cvcke,  3  Munf.  197. 

^  The  other  questions  raised  on  this  report  I  shall  very  briefly  notice.  It  was 
objected  that  the  declarations  of  Shepherd  made  after  the  dissolution  of  the  co- 
partnership, relating  to  the  performance  of  the  contract  on  the  part  of  the  plain- 
tiff, ought  not  to  have  been  admitted  as  competent  evidence.  On  this  point 
there  are  many  conflicting  decisions,  to  which,  however,  I  do  not  think  it  neces- 
sary particularly  to  advert.  The  rule  is,  we  think,  correctly  laid  down  by  Mans- 
field, C.  J.,  in  the  case  of  Wood  et  al.  v.  Braddick,  1  Taunt.  103:  "The  admis- 
sion of  one  partner,  made  after  the  partnership  has  ceased,  is  not  evidence  to 
charge  the  other  in  any  transaction  which  has  occurred  since  their  separation ; 
but  the  power  of  partners,  with  respect  to  rights  created  pending  the  partner- 
ship, remains  after  dissolution."  This  rule  of  law  has  been  frequently  recognized 
with  unqualified  ap]irobation  {Lacy  v.  M'Neal,  4  Dowl.  &  Ryl.  7 ;  Gow.  on 
Partio.  !I0),  and  is,  I  think,  the  settled  law  of  England  at  the  present  day,  not- 
withstanding the  contradictory  opinions  which  have  since  prevailed  in  relation 
to  the  admissions  made  by  a  partner  as  to  debts  barred  by  the  statute  of  limita- 
tions. And,  but  for  these  conflicting  opinions,  the  rule  in  the  leading  case  of 
Wood  et  al.  v.  Braddick  would  not,  I  apprehend,  have  been  ever  questioned. 
But  these  conflicting  opinions  do  not,  that  I  can  perceive,  at  all  affect  the  rule 
in  question,  in  relation  to  the  outstanding  subsisting  demands  against  partners, 
or  joint  promisors,  which  are  not  barred  by  the  statute.  Those  who  hold  that 
the  promise  or  acknowledgment  of  one  of  two  partners  or  joint  promisors  is  not 
sufficient  to  take  a  case  out  of  the  statute,  assume  the  principle  that  such  a  now 
promise  or  acknowledgment  is  a  new  and  independent  cause  of  action,  and  this 


220  ECCLESIASTICAL  LAW. 


close  the  consideration  of  hearsay  evidence.  That  is,  the  ad- 
mission of  a  party's  own  books  of  account  in  evidence,  in  proof 
of  the  delivery  of  goods  therein  charged,  the  entries  having  been 
made  either  hj  the  party  himself  or  by  his  clerk,  who  is  since 
deceased.  In  order  to  the  admission  of  this  character  of  evi- 
dence, the  books  must  have  been  kept  for  that  purpose,  and 
the  entries  must  have  been  made  by  the  person  whose  duty 
it  was  for  the  time  being  to  make  such  entries ;  and  they  must 
have  been  made  contemporaneous  with  the  sale  of  the  goods,  so 
as  to  indicate  that  they  constitute  a  part  of  the  transaction;  but 
even  then  the  books  are  not  admissible,  where,  from  the  nature 
of  the  transaction  it  is  evident  that  better  evidence  is  attainable. 


principle  being  conceded,  the  conclusion  drawn  from  it  is  just;  but  it  does  not 
impugn  the  rule  in  question,  which  we  consider  well  established  by  a  series  of 
judicial  decisions,  and  is  certainly  the  law  of  this  commonwealth.  17  Mass.  R. 
222  ;  2  Pick.  581 ;  White  v.  Hall,  :5  Pick.  291 ;  5  Pick.  414;  Hathaway  v.  Has- 
kell, 1)  Pick.  42.  This  rule,  however,  is  denied,  and  contrary  doctrine  is  ad- 
vanced by  Spencer,  C.  J.,  in  the  case  of  Walden  v.  Sherhourne  et  al.  15  John.  R. 
401).  He  niivintains  that  one  partner  can  not  after  a  dissolution  bind  his  co- 
partner  by  acknowledging  an  account,  any  more  than  he  can  give  a  promissory 
note  to  bind  him  ;  and  he  thinks  there  is  more  safety  in  this  doctrine  than  in 
the  contrary  one.  Undoubtedly  it  may  be  more  safe  for  the  fraudulent  debtor, 
but  It  is  less  just  to  the  honest  creditor.  With  great  deference,  therefore,  to  that 
eminent  judge  for  whose  opinions  I  entertain  the  highest  respect,  I  can  not 
but  think  that  the  rule  laid  down  in  the  case  of  Wood  et  al.  v.  Braddick  is  a 
sufficiently  safe  rule  of  evidence,  and  well  adapted  to  the  discovery  of  truth,  and 
the  due  administration  of  justice.  Indeed  the  rule  in  connection  with  the  legal 
remedy  on  joint  contracts,  seems  not  only  proper,  but  indispensable.  The  disso- 
lution of  a  partnership  does  not  discharge  the  partners  from  their  liability  on 
contracts  made  during  the  continuance  of  the  i)artnership.  All  must  be  sued; 
and  a  separate  recovery  can  not  be  had  against  any  one  of  the  partners.  In  re- 
spect, therefore,  to  such  contracts  and  liabilities  it  is  immaterial  whether  the 
confessions  of  any  one  of  the  partners  was  made  before  or  after  the  dissolution. 
Whether  the  other  partners  are  necessarily  and  conclusively  bound  by  such  con- 
fessions is  a  different  question.  Doubtless  they  may  disprove  the  truth  of  such 
confessions;  they  may  prove  payment,  or  any  other  discharge  of  the  claim,  or 
tliat  the  contract  or  claim  had  never  any  legal  validity.  But  that  the  con- 
fessions of  any  one  of  the  defendants  in  an  action  against  several  on  a  joint 
contract  may  be  given  in  evidence  against  them,  the  joint  contract  being  first 
proved  aliunde,  can  not,  we  think,  be  reasonably  doubted  See  Parker  v.  Me)'- 
ril,  Ci  Greenl.  41;  Baker  v.  Siackpoole,  !)  Cowen,  483;  Hopkins  v.  Banks, 
7  Cowen,  050;  Story  v.  Barrell,  2  Connect.  R.  005;  Pritchard  v.  Draper, 
1  Kuss.  &  Mylno,  l!)l ;  Stead  v.  Salt,  It)  Moore,  808 ;  Brishan  v.  Boyd,  4  Paige, 
17;  r.ridye  v.  (J  ray,  14  Pick.  55;  Vinal  v.  Burr  ill,  IG  Pick.  401  ;   11  Pick.  407. 


THE  BURDEN  OF  PROOF.  221 

The  rules  of  the  several  States  in  regard  to  the  admission  of  this 
character  of  evidence  are  not  entirely  uniform.  Some  of  the 
States  require  ancillary  proof  that  they  are  the  books  of  original 
entry  of  the  party  offering  them,  that  the  entries  were  made 
about  the  time  that  they  purport  to  be  made,  that  the  parties 
making  the  entries  did  not  keep  a  clerk  Avhose  duty  it  was  to 
make  such  entries,  and  that  he  has  settled  with  different  parties 
out  of  the  books,  and  that  his  books,  as  shown  by  the  evidence  of 
the  parties  settling  with  him,  are  true  and  correct.  Others  of  the 
States  allow  the  party  to  swear  to  the  correctness  of  his  books. 
Where  the  entries  are  made  by  a  clerk,  such  clerk  must  be  pro- 
duced to  prove  the  correctness  of  the  entries ;  or,  if  the  clerk  be 
dead,  then  proof  of  his  handwriting,  accompanied  with  prelim- 
inary proof  as  above  stated,  will  be  sufficient  to  admit  them  in 
evidence. 

CHAPTER  XV. 

THE   BURDEN   OF   PROOF. 

The  party  affirming  any  fact  is  ordinarily  bound  to  assume 
the  burden  of  proof.  It  is,  therefore,  sufficient,  where  the  alle- 
gation is  affirmative,  to  oppose  it  with  a  denial,  unless  the  facts 
in  the  case  are  of  such  a  nature  as  to  require  the  defendant  to 
admit  the  allegation,  and  to  avoid  the  effect  of  it  by  the  state- 
ment of  some  other  affirmative  fact.  This  rule  is  in  harmony 
with  the  old  Roman  maxim,  ei  incnmhit  prohntlo  qui  (licit  non  qui 
negat,  that  is,  that  the  proof  lies  upon  him  who  accuses,  not  on 
him  who  denies ;  as  in  the  nature  of  things  the  fact  of  denial  is 
no  evidence.  As  a  consequence  of  this  rule  the  party  who  as- 
serts the  affirmative  of  a  fact,  whether  plaintiff  or  defendant,  is 
entitled  to  begin  with  his  evidence ;  where  new  matter  has  been 
introduced  by  either  party,  the  party  holding  the  affirmative  is 
legally  entitled  to  reply  to  such  new  matter;  but  the  party  hold- 
ing the  affirmative  is  not  permitted  to  go  into  half  of  his  cise  in 
chief,  and  to  reserve  the  other  half  until  the  other  party  has  in- 
troduced his  evidence,  but  he  is  regularly  required  to  develop  his 
whole  case  in  chief  before  the  other  party  is  required  to  begin.  In 
determining  who  should  regularly  begin  and  reply,  regard  is  had  to 
the  substance  and  effect  of  the  controversy,  rather  than  to  the 


222 


ECCLESIASTICAL  LAW. 


form  of  it.  This  rule,  however,  has  but  slight  application  to 
proceedings  in  a  Church  trial  or  investigation,  for  the  reason  that 
there  are  no  written  pleadings  required,  making  up  a  formal  issue, 
such  as  are  used  in  courts  of  record.  Yet  while  there  are  no 
technical  written  pleadings,  except  the  complaint  required,  the 
principle  applies  equally  in  a  Church  trial  or  investigation,  that 
the  burden  of  proof  devolves  upon  the  party  holding  the  affirma- 
tive. It  may  sometimes  happen  that  the  accused  may  take  upon 
himself,  after  admitting  the  prima  facie  case  made  against  him, 
this  burden,  by  attempting  to  justify  and  explain  away  the  force 
and  legal  effect  of  the  charges  and  specifications.  If  the  com- 
plaint contains  several  charges  and  sevei'ai  different  specifications, 
some  of  which  the  accused  justifies,  and  others  of  which  he  de- 
nies, the  prosecution,  under  such  circumstances,  holds  the  affirm- 
ative, and  is  entitled  to  begin.  Thus,  if  the  charges  against  the 
accused  are  for  slander  or  libel,  and  also  for  profanity,  and  the 
accused  justifies  the  slander  or  libel,  but  pleads  not  guilty  to  the 
profanity,  the  prosecution  having  the  right  to  prove  the  defend- 
ant guilty  of  all  offenses  charged,  and  to  make  out  and  establish 
each  specification,  embodied  in  the  complaint,  has  the  right  to 
begin  and  is  entitled  to  reply.  How  far  the  prosecution  shall  be 
permitted  to  proceed  in  proof,  in  anticipation  of  the  defense,  is 
regulated  by  the  discretion  of  the  judge,  preacher  in  charge,  or 
other  presiding  officer,  according  to  the  circumstances  of  the 
case,  regard  being  usually  had  to  the  question,  whether  the  whole 
defense  is  so  far  indicated  by  the  accused  with  sufficient  certainty 
to  render  the  prosecutor's  evidence  intelligible.  In  a  trial  or  in- 
vestigation before  a  conference,  or  a  committee  of  the  Church, 
the  prosecution  should  produce  all  the  affirmative  evidence  on 
which  it  means  to  rely  before  tiie  accused  is  called  upon  to  make 
his  defense;  and,  if  the  com{)laint  embraces  several  independent 
ciiarges,  or  specifications,  or  both,  the  prosecution  should,  in  the 
first  instance,  regularly  introduce  its  evidence  in  support  of  all 
of  them.  But  where  there  are  several  specifications,  founded 
upon  the  same  charge,  inserted  in  the  complaint  with  an  alterna- 
tive view  of  having  the  specification  and  the  evidence  conform, 
the  prosecution  may  convict  under  one  of  the  specifications,  al- 
though he  can  not  upon  another,  and  although  the  proof  of  one 
disproves  the  other.     The  prosecution  niay,  in  the  first  instance, 


THE  BURDEN  OF  PROOF.  223 

produce  his  evidence  in  support  of  one  only,  and  if  upon  the 
defendant's  evidence  to  disprove  such  charges,  or  the  phiintifF's 
evidence,  offered  by  way  of  rebuttal,  the  prosecution  fails  to  sup- 
per^ the  specification  under  which  the  plaintiff's  evidence  was 
offered,  but  does  support  another  specification,  the  accused  may 
be  convicted  upon  the  latter  specification.^ 

It  would  seem  that  where  it  appears  by  a  written  stipulation 
by  the  admission  of  the  party  or  his  counsel,  that  the  facts 
charged  in  the  complaint  are  admitted,  so  that  there  is  no  dispute 
about  them,  but  the  defense  relies  upon  affirmative  matter  as  a 
justification  or  excuse,  under  such  circumstances  the  defendant 
will  have  the  right  to  begin  and  reply  ;  even  if  the  defendant  has 
filed  a  formal  denial,  he  may  still  at  the  hearing  secure  the  ad- 
vantage of  beginning  and  replying  by  withdrawing  such  denial, 
or  by  admitting  the  Avhole  of  the  charges  contained  in  the  com- 
plaint. And  the  defendant  may,  in  some  cases,  by  admitting  the 
gravamen  of  the  complaint,  secure  to  himself  this  advantage 
without  admitting  all  of  the  aggravating  circumstances  charged. 
Thus,  in  an  action  of  trespass  for  breaking  the  plaintiff's  close, 
the  defendant  pleaded  not  guilty  as  to  the  force  and  arms,  and 
Avhatever  is  against  the  peace,  and  justified  as  to  the  residue, 
and  the  damages  were  laid  only  in  the  usual  form  of  treading 
down  the  grass,  and  subverting  the  soil.  The  defendant  was  per- 
mitted to  begin  and  reply,  there  being  no  necessity  for  the  intro- 
duction of  any  proof  on  the  part  of  the  plaintiflF.  The  true  test 
to  be  observed  in  determining  which  party  has  the  right  to  begin, 
and,  of  course,  in  determining  where  the  burden  of  proof  rests, 
is  to  consider  which  party  would  be  entitled  to  the  verdict  or 
judgment  if  no  evidence  was  offered  on  either  side,  for  the  bur- 
den of  proof  lies  on  the  party  upon  whom  in  such  case  the  ver- 
dict ought  to  be  given. ^  There  is,  however,  a  difficulty  in 
determining  who  should  begin  and  reply,  arising  in  a  class  of 

^  Undoubtedly  an  orderly  course  of  proceeding  at  trials  is  necessary  to  the 
attainment  of  the  purposes  of  justice;  and,  as  a  general  rule,  it  is  proper  that  a 
plaintitf  wiio  has  the  afSrmative  should  produce  all  the  evidence,  which  he  means 
to  rely  upon  in  the  first  instance,  and  if  he  has  included  in  one  suit  several  dis- 
tinct substantive  and  independent  demands,  he  should  introduce  his  evidence  as 
to  all  demands,  before  the  defendant  is  called  upon  to  answer.  Jones  v.  Kennedy, 
11  Pick.  131. 

^  Leet  V.  Gresham  Life  Insurance  Qompany,  7  Eng.  Law  &  Eq.  R.  578. 


224 


ECCLESIASTICAL  LAW. 


cases  in  our  civil  courts  which  deserves  only  a  passing  notice 
here,  as  they  can  seldom  arise  in  a  Church  investigation.  Thus, 
where  the  action  is  for  unliquidated  damages,  such  as  libel, 
slander,  malicious  prosecution,  or  personal  injury,  and  the  de- 
fendant has  met  the  whole  case  with  an  affirmative  plea,  the  prac- 
tice has  not  been  uniform ;  in  some  of  the  cases  it  has  been  held 
that  the  plaintiff  shall,  notAvithstanding,  have  the  privilege  of 
beginning  and  replying,  although  the  action  stands  admitted  on 
the  record,  and  the  affirmative  and  burden  of  proof  is  on  the  de- 
fendant. In  other  cases  it  has  been  regarded  as  resting  in  the 
discretion  of  the  Court,  under  all  the  circumstances  of  the  case. 
But  the  weight  of  authority  seems  to  be  in  favor  of  giving  the 
opening  and  close  of  the  case  to  tiie  plaintiff,  where  the  damages 
are  unliquidated  and  do  not  rest  in  computation  alone.' 

In   proceedings  before  an  ecclesiastical  tribunal,  where  the 

^  On  the  point  raised  in  this  case,  which  is  matter  of  practice  only,  we  are  all 
clear  that  the  course  of  argument  prescribed  at  the  trial  was  right.  The  general 
rule  is,  that  the  plaintiff  who  has  the  burden  of  proof  shall  have  the  general  re- 
ply or  closing  argument.  There  has  been  an  exception  in  our  practice  only 
where  the  plaintiff,  by  his  plea,  admits  the  whole  cause  of  action  stated  in  the 
declaration,  and  undertakes  to  remove  or  defeat  it  by  the  matter  set  up  in  his 
bar.  The  cases  have  usually  been  trespass,  where  the  defendant  acknowledges 
the  act  and  claims  in  his  plea  the  soil  and  freehold  in  himself  or  some  one  under 
whom  he  acts  as  a  servant,  or  by  license;  slander,  in  which  a  justification  only  is 
pleaded ;  and  debt  or  obligation,  where  the  contract  is  admitted,  but  some  matter 
of  defeasance  or  discharge  is  pleaded.  There  are  other  cases  depending  upon 
the  same  principle;  that  is,  where,  by  the  pleadings,  nothing  essential  to  the 
action  is  left  for  the  plaintiff  to  prove,  and  where  the  finding  of  the  issue  for  the 
defendant  depends  upon  affirmative  proof  by  him.  In  all  such  cases,  however, 
if  the  defendant  pleads  the  general  issue  also,  the  right  of  reply  has  been  ac- 
corded to  the  plaintiff,  even  if,  on  trial,  the  defendant  waives  any  proof  on  the 
part  of  the  ])laintiff  to  maintain  that  issue.  This  having  been  the  uniform  jirac- 
tice,  according  to  the  recollection  of  all  of  us,  it  is  best  to  adhere  to  it,  although, 
in  other  cases,  and  in  such  as  is  before  us  where  the  [)laintiff  was  saved  the  trouble 
of  proof  to  make  out  his  case  by  the  admission  of  the  necessai-y  facts,  the  rea- 
son may  be  cpiite  as  strong  for  giving  this  privilege  to  the  defendant.  The  right 
of  closing  a  cause  is  not  very  essential  to  the  procurement  of  a  right  verdict  if 
the  judge  who  presides  is  cautious  in  summing  up  the  evidence.  If,  as  in  a 
neighboring  State,  the  Court  were  mere  silent  spectators  of  forms,  without  the 
right  of  charging  the  jury,  the  privilege  of  closing  would  be  more  worth  con- 
tending for  than  with  us,  where  the  judge  has  the  last  word  instead  of  the  coun- 
sel. Ayerw  Atistin,  6  Pick.  225;  Laken  v.  llifiyins^  3  Stark.  178;  Bobe?/  v. 
Jloward,  2  Stark.  555;  Young  v.  Baimer^  1  Esk.  103;  Comsiock  v.  Hadley,  8 
Conn.  201. 


THE  BURDEN  OF  PROOF.  225 

onus  2»'ohnndi  is  not  teclinically  presented,  sucli  tril)una]s  nsuallv 
adopt  tlie  same  principles  wliicli  govern  in  proceedings  according- 
to  tlie  course  of  the  common  ]an\  Tims,  in  tlie  probate  of  a 
will  before  an  ecclesiastical  court  in  England,  it  was  held,  that 
on  an  issue  as  to  whether  the  will  was  valid  or  invalid,  the  ex- 
ecutor was  entitled  to  the  affirmative.  So  where  the  question  Avas 
as  to  the  state  of  the  testator's  mind  at  the  time  of  the  execution 
of  the  will,  upon  an  appeal  from  the  decree  of  judge  of  probate 
allowing  or  rejecting  the  will,  it  was  held  that  the  party  offering 
the  will  in  the  appellate  court  is  required  to  produce  the  attest- 
ing witness  to  show  the  soundness  of  the  testator's  mind  at  the 
time  of  the  execution  of  the  will,^  and  consequently  the  executor 

'  But  we  are  by  no  means  satisfied  that  in  relation  to  wills  there  is  anj-  legal 
presumption  In  this  commonwealth  of  the  sanity  of  the  testator.  If  such  pre- 
sumption exists,  no  proof  that  the  testator  was  of  sound  mind  would  be  neces- 
sary until  those  opposing  the  will  had  offered  some  evidence  to  impeach  it.  The 
presumption  of  sanity  would  be  sufficient  until  there  was  something  to  meet  it. 
Yet  our  cases  uniformly  hold,  that  the  party  seeking  probate  of  the  will  must 
produce  the  attesting  witness  to  show  not  merely  the  execution  of  the  instru- 
ment, but  the  sanity  of  the  testator  at  the  time  of  its  execution.  Phelps  v. 
Ilartwell;  Blaney  v.  Sargeant ;  Barrett  v.  Brooks^  above  cited,  7  Pick.  94;  1 
Mass.  71;  1  Mass.  335;  Buckminsier  v.  Pari/,  4  Mass.  593.  And  such  has 
been,  we  think,  the  uniform  practice  in  the  Probate  Courts,  and  in  this  Court  sit- 
ting as  the  Supreme  Court  of  Probate.  These  cases  were  decided,  and  this 
practice  grew  up,  under  the  explicit  language  of  the  St.  of  1783,  c.  24,  §  1,  which 
provided  that  "every  person  lawfully  seized  of  any  lands,  etc.,  of  the  age  of 
twenty-one  years  and  upward,  and  of  sane  mind,  shall  have  power  to  give,  dis- 
pose of,  and  devise  the  same."  The  language  of  the  revised  statute  is  to  the 
same  effect:  "Every  person  of  full  age  and  of  sane  mind."  Rev.  Sts.  c.  fi2, 
§  §  1,  5.  There  are  strong  reasons  why  the  same  presumption  as  to  sanity  should 
not  attach  to  wills  as  to  deeds  and  ordinary  contracts.  Wills  are  supposed  to  be 
made  in  extremis.  In  point  of  fact,  a  large  proportion  of  them  are  made  when 
the  mind  is,  to  some  extent,  enfeebled  by  sickness  or  old  age.  It  is  for  this  rea- 
son that  the  execution  of  the  will  and  the  proof  of  its  execution  are  invested 
with  more  solemnity,  the  statute  requiring  it  to  be  attested  by  three  or  more 
competent  witnesses ;  making  void  all  beneficial  devises,  legacies,  or  gifts  to  such 
subscribing  witnesses;  and  requiring  the  presence  of  the  three  in  the  Probate 
Court  for  its  proof,  unless  it  appears  by  consent  in  writing  of  the  heirs  at  law,  or 
other  satisfactory  evidence,  that  no  person  interested  intends  to  object  to  the  pro- 
bate of  the  will.  Rev.  Sts.  c.  02,  §  §  6,  8,  15.  We  speak  of  what  seems  to  be 
the  rule  in  this  commonwealth  under  the  St.  of  1783,  c.  24,  and  the  Rev.  Sts.  c. 
62.  There  is,  no  doubt,  both  conflict  and  confusion  in  the  authorities  on  this 
point,  both  in  England  and  in  this  country.  A  general  legal  presumption  doubt- 
less  exists  that  a  man  Is  sane  till  there  is  evidence  to  the  contrary,  and  upon 


226  ECCLESIASTICAL  LAW, 


or  other  person  producing  the  will  holds  the  affirmative,-^  and 
therefore  is  entitled  to  open  and  close  the  case  witliont  reference 
to  the  question  of  sanity  or  insanity  of  the  testator.^ 


proof  of  the  execution  of  a  contract,  or  of  a  deed,  no  pi-oof  need  be  given  that 
the  maker  was  of  sound  mind  when  he  executed  it.  The  presumption  is  suffi- 
cient until  evidence  is  produced  to  meet  it.  This  presumption  has  often  been 
applied  to  the  proof  of  wills,  but  not  in  our  own  court;  nor  is  the  rule  elsewhere 
uniform.  In  the  case  of  Gerrish  v.  Nason,  22  Maine,  441,  the  Court  say :  "  The 
presumption  that  the  person  making  the  will  was  at  the  time  sane  is  not  the 
same  as  in  the  case  of  the  making  of  other  instruments,  but  the  sanity  must  be 
proved."  In  Comsiock  v.  Iladhpin,  8  Conn.  2(il,  the  Court  say:  "Those  who 
claim  under  the  will  must  take  upon  themselves  the  burden  of  jiroof ;  and  they 
must  not  only  prove  that  the  will  was  formally  executed,  but  that  tlie  testator  was 
of  sound  and  disposing  mind."  In  the  recent  case  of  Barry  v.  Butlin,  before 
the  judicial  committee  of  the  privy  council,  Mr.  Baron  Parke,  in  pronouncing 
the  judgment,  says  :  "  The  rules  of  law  according  to  which  cases  of  this  kind  are 
to  be  decided,  do  not  admit  of  any  dispute  so  far  as  they  are  necessary  to  the  de- 
termination of  the  present  appeal,  and  they  have  been  acquiesced  in  on  both 
sides.  These  rules  are  two:  the  first,  that  the  onus  probandi.  lies  in  everv  case 
upon  the  party  propounding  a  will,  and  he  must  satisfy  the  conscience  of  the 
Court  that  the  instrument  so  propounded  is  the  last  will  of  a  free  and  capable 
testator."     1  Curt.  Eccl.  (138 ;   2  Gray,  5H2,  et  seq. 

'  Dana,  Chief-Justice,  Strong  and  Thacher,  Judges,  were  agninst  admitting 
the  evidence  on  the  ground  that  it  was  a  bare  opinion  concerning  the  point  as  to 
whether  the  testator  was  of  sound  disposing  mind  and  memory  or  not.  Sedg- 
wick, Judge,  in  delivering 'the  opinion  of  the  Court  in  the  case  oi  Phelps  et  ah 
V.  Hartwell  et  al.  1  Mass.  70,  says,  that  in  the  case  this  counsel  for  the  appellees 
contended  that  the  burden  of  proof  was  with  the  appellants,  and  that  it  was  in- 
cumbent on  tliem  to  show  that  the  testator  was  not  of  sound  mind  at  the  time  of 
making  the  will,  and  for  this  was  cited  Godol.  24,  in  which  it  is  said  that  proof 
of  insanity  must  be  made  by  those  who  object  to  the  instrument  offered  as  a  will. 
But  the  whole  Court  held,  that  the  rule  was  the  same  in  this  case  as  in  all  others. 
The  burden  of  proof  is  always  with  those  who  take  the  affirmative  in  pleadino-. 
Here  the  appellees  have  the  affirmative,  and  must,  therefore,  produce  reasonable 
and  satisfactory  evidence  to  the  jury  that  the  testator  was  sane  at  the  time  of 
making  his  will;  and  the  jury  will  confine  themselves  in  their  inquiry  into  the 
facts  as  to  the  state  of  the  testator's  mind  at  that  time.  Powell  on  Devises,  and 
the  case  of  Hodgdon  v.  WaUis  there  cited.     See  also  Fonbl.  Eq.  p.  d"),  note  x. 

*  Thomas,  Judge,  in  delivering  the  opinion  of  the  Court  in  the  case  of 
Crowninshield  et  ah  v  Cravninshield  (2  Gray,  529),  says  :  "We  can  perceive 
here  no  shifting  of  the  burden  of  proof:  the  issue  throughout  was  but  one:  Was 
the  testator  of  sound  mind  ?  and  the  affirmative  of  this  was  upon  the  party  offer- 
ing the  will  for  jirobate.  Again  :  that  issue  is  an  issue  of  fact,  and  is  to  the  jury; 
and  how  is  the  Court  to  determine  when  the  will  is  '  proved,' or  'sufficiently 
proved,'  by  the  .«ul)sr'ril)ing  witnesses,  'so  that  the  burden  of  proof  shifts  from 
the  executor  to  the  heir  ?'     It  is  a  question  of  the  oflect  of  evidence,  and  could 


THE   BURDEN  OF  PROOF.  227 

Tliere  arc  some  exceptions  to  the  rule,  tliat  tlie  party  holding 
the  affirmative  has  devolved  upon  Iiim  the  burden  of  proof. 
There  are  certain  propositions,  though  negative  in  their  terms, 
"which  must  be  proved  by  the  party  who  affirms  them.  This  class 
of  exceptions  includes  cases  where  the  plaintiff  grounds  his  right 
of  action,  or  the  defendant's  liability  upon  a  negative  statement 
of  facts  which  is  an  essential  element  in  his  case.  Thus,  in  an 
action  for  malicious  prosecution,  one  of  the  material  and  essential 
averments  is  a  want  of  probable  cause,  and  in  order  to  entitle 
the  plaintiff  to  maintain  the  action,  he  must  prove  this  negative 
proposition.  So  in  a  prosecution  founded  upon  a  penal  statute, 
in  defining  the  offense  which  contains  a  negative,  the  complaint 
must  contain  such  negative,  and  also  it  must  be  supported  by 
affirmative  proof  on  the  part  of  the  plaintiff.  It  is  obvious, 
however,  that  where  negative  evidence  is  required,  Avhich  from 
its  very  nature  is  more  difficult  to  make  out  than  affirmative 
proof,  it  Avill  ordinarily  be  considered  sufficient  if  the  party 
affirming  such  evidence,  as  in  the  absence  of  countervailing  tes- 

only  be  solved  by  probing  the  mind  of  each  jnror.  Suppose  the  attesting  wit- 
nesses are  divided  in  opinion — one  for  the  sanity  of  the  testator,  one  against,  the 
other  doubtful — or  that  two  testify  against  the  sanity  of  the  testator  and  the  third 
that  he  was  of  sound  mind,  and  tlie  jurj'  place  greater  confidence  in  the  means 
of  observation,  intelligence,  judgment,  and  integrity  of  the  one  than  of  the  other 
two;  or  that  all  three  testify  (a  case  not  without  precedent),  so  far  as  it  is  matter 
of  opinion,  in  favor  of  the  sanity  of  the  testator,  yet,  in  view  of  all  the  facts  and 
the  circumstances  detailed  by  the  same  witnesses,  the  jury  reach  a  very  different 
conclusion.  If  there  could  be  a  shifting  of  the  burden  upon  a  single  issue,  it 
would  be  impossible  to  tell  when  the  burden  is  to  be  transferred  from  the  one 
party  to  the  other.  It  is  quite  difficult  to  understand  what  was  meant  by  the 
Court  when  they  said  that  '  if  he  (the  executor)  makes  out  his  case  by  the  statute 
evidence  he  has  only  to  defend  against  the  proof  of  insanity  produced  by  the 
other  party.'  The  law  has  made  no  further  distinction  between  the  attesting  and 
other  witnesses  than  that  the  opinions  of  the  former  may  be  given  in  evidence,  and 
even  this  distinction  does  not  e.xtend  to  professional  witnesses.  If  the  three  attest- 
ing witnesses,  being  comparative  strangers  to  the  testator,  and  called  in  for  the 
mere  purpose  of  witnessing  the  will,  testify  that,  so  far  as  they  saw,  the  testator 
was  of  sound  mind,  and  the  attending  physician.s,  familiar  with  the  facts  and  with 
the  history  of  the  party,  testify  that  he  was  insane,  the  law  attaches  no  peculiar 
weight  to  the  testimony  of  the  former  as  against  the  latter.  Still  less  does  it 
give  it  any  such  preponderance  as  to  shift  the  burden  of  proof  The  issue 
after  the  evidence  is  all  in  is  precisely  the  same  that  it  was  at  the  begin- 
ning— Was  the  testator  of  sound  mind? — an  issue  in  its  very  nature  incapable 
of  division." 


228 


ECCLESIASTICAL  LAW. 


timonj,  -would  afford  ground  in  general  for  presuming  that  the 
allegation  is  true.  ^  Wliere,  however,  the  facts  of  the  negative 
averment  rest  peculiai'ly  Avithin  the  knowledge  of  the  other  party, 
no  evidence  is  required  in  support  of  such  negative  averment, 
and  the  averment  is  taken  as  true  unless  disproved  by  the  defend- 
ant. Thus,  upon  an  indictment  for  selling  intoxicating  liquors 
without  a  license,  the  burden  of  proving  the  license  for  the  sale 
of  the  liquor  is  expressly  devolved  upon  the  person  selling  it." 
Where  the  negative  allegation  involves  a  charge  of  criminal  neg- 
lect of  duty,  whether  official  or  otherwise,  the  party  making  the 
allegation  must  prove  it,  for  the  presumption  of  law  in  cases  of 
this  character  is  in  favor  of  innocence.  Thus,  on  an  informa- 
tion against  Lord  Halifax  for  refusing  to  deliver  up  the  rolls  of 
the  exchequer  in  violation  of  his  duty,  the  prosecutor  was  re- 
quired to  prove  the  negative.  So  in  an  action  against  an  officer 
for  failing  to  attach  property,  as  the  property  of  the  debtor,  the 
burden  of  proof  that  the  property  was  the  property  of  the  de- 
fendant, and  liable  to  attachment,  was  held  to  be  upon  the  plain- 
tiff.^ An  exception  to  this  rule  is  admitted  in  Chancery,  in  the 
case  of  an  attorney  and  client,  it  being  a  rule  that  where  the  re- 
lation of  attorney  and  client  is  once  established,  and  the  attorney 
deals  with  the  client  during  the  existence  of  such  relation,  the 
onus  is  upon  him  of  proving  that  no  advantage  was  taken  of  the 
latter.*     In  a  suit  by  the  holder  of  a  promissory  note  or  bill  of  ex- 


^  A  party  is  not  required  to  make  plenary  proof  of  a  negative  averment.  It 
is  enough  that  he  introduces  sucli  evidence  as  in  the  absence  of  all  counter  tes- 
timony will  afli'ord  reasonable  grounds  for  presuming  that  the  allegation  is  true; 
and  when  this  is  done  the  onus  prohandi  will  be  thrown  on  his  adversary. 
Graves  v.  Bruen  et  al  1 1  111.  411  ;  Calder  v.  Rutherford,  3  B.  &  B.  7  Morse,  158. 

^  Per  C'liriam.  It  seems  to  us  that  the  indictment  is  sufficient.  The  allega- 
tion that  the  defendant  is  presumed  to  be  a  common  seller  by  retail  is  enough, 
without  alleging  that  the  quantity  was  less  than  twenty-eight  gallons.  That  may 
be  deemed  the  legislative  definition  of  the  term  retail,  and  it  is  matter  of  evi- 
dence for  the  defendant  to  show  that  the  quantities  which  he  sold  were  not  less. 
Commomcealth  v.  Peter  Eaton,  D  Pick.  1 06. 

Hex  V.  Smith,  3  Burr.  47r);  King  v.  Timier,  5  M.  &  Selw.  209;  Apoth- 
ecaries Co.  V.  Bentlei/,  1  Ryan  &  Moody,  150;  Cummomvealth  v.  Samel,  2  Pick. 
103;  Geninr/  v.  The  State,  1  M'Cord  573. 

8  Phelps  V.  Cutter,  4  Gray,  139. 

•*  The  issue  was  whothor  the  defendant  had  neglected  his  duty  as  an  officer  in 
not  attaching  personal  property  as  tin;  property  of  Ilallowell,  the  debtor,  and  this 


HEARSAY  EVIDENCE.  229 


change,  which  has  been  stolen  or  Avhich  has  otherwise  been  fraudu- 
lently put  in  circulation,  the  burden  is  on  the  plaintiff  to  prove 
that  he  came  fairly  into  the  possession*  of  it,  under  such  circuni- 


involved  the  other  question  whether  the  chattels  specified  were  at  the  time  the 
property  of  Halloweil,  or  so  far  his  property  as  to  be  liable  to  attachment  for  liis 
debts.  On  this  the  plaintiff  had  the  burden  of  proof.  Phelps  v.  Cutter,  4  Gray, 
139.  Bigelow,  J.  "Tliis  case  presents  a  simple  question  as  to  the  burden  of 
proof  Ordinarily  in  an  action  of  indebitatus  assumpsit  for  goods  sold,  proof 
of  the  sale  and  delivery  of  the  articles  to  the  defendant  make  out  a  prima  Jacie 
case,  and  entitles  the  plaintiff  to  recover,  unless  evidence  is  offered  by  the  de- 
fendant to  control  it.  But  in  the  case  at  bar  the  plaintiff  coupled  the  proof  of 
the  sale  and  delivery  with  an  admission  that  it  was  a  sale  on  credit.  Having 
made  this  admission,  he  could  not  recover  until  he  had  shown  that  the  term  of 
credit  had  expired.  This  was  in  the  nature  of  a  condition  precedent  to  his  right 
to  maintain  his  action,  and  upon  the  most  familiar  principles  of  evidence,  the 
burden  was  on  him  to  prove  its  fulfillment."     Morrison  v.  ClarJc,  7   Cush.  214; 

1  Story's    Eq.  Jr.  311;    Gibson  v.    Jei/es,    6    Ves.    278.    Kane  v.    Ld.   Allen, 

2  Dowell,  289. 

^  Wilde,  J.,  delivered  the  opinion  of  the  Court.  "We  all  agree  that  a  new 
trial  in  this  case  must  be  granted,  for  the  purpose  of  allowing  the  defendants  to 
prove,  if  they  can,  that  there  was  fraud  practiced  in  the  inception  of  the  note, 
or  that  it  was  fraudulently  put  in  circulation.  This  fact  being  established  will 
throw  upon  the  plaintiff  the  burden  of  proof  to  show  that  he  came  by  the  pos- 
session of  the  note  fairly,  and  without  any  knowledge  of  the  fraud."  Munroe  v. 
Cooper,  5  Pick.  413. 

Erskine  and  Peggot  showed  cause.  They  admitted  from  Miller  v.  Race, 
1  Burr.  452;  Grant  v.  Vaughan,  3  Burr.  1516;  Peacock  v.  Rhodes,  Dougl.  633, 
and  other  cases,  that  prima  facie  the  bearer  of  a  bank-note  was  entitled  to  re- 
ceive the  money  merely  on  the  score  of  his  possession,  and  that  no  other  person 
was  entitled  to  the  note,  unless  he  were  also  entitled  to  the  money;  and  that 
whoever  impeaches  his  title  must  take  the  burden  of  proof  upon  himself  But 
the  principle  of  all  the  cases  was,  that  the  party  standing  upon  his  possession 
was  a  bona  fide  holder  for  a  valuable  consideration;  and  therefore  the  ease  did 
not  apply  to  establish  this  plaintiff's  right,  who  appeared  upon  the  evidence,  not 
to  be  a  holder  for  a  valuable  consideration  before  notice.  It  appears  plainly 
from  the  letters  that  on  the  2d  of  February,  1790,  when  he  was  informed  by  the 
bank  of  all  the  facts  relative  to  the  note,  he  had  not  then  advanced  any  consid- 
eration for  it  to  his  correspondents,  from  whom  he  only  received  it  on  the  27th 
of  January  preceding,  and  who  then  informed  him  that  they  should  draw  upon 
him  for  the  amount  at  some  future  period.  It  is  as  plain  that  on  the  11th  of 
April  he  had  not  advanced  any  thing  on  the  note;  for  they  wrote  to  desire  him, 
either  to  pay  the  money  or  return  the  note.  If  after  notice  he  thought  proper 
to  pay  the  money,  the  most  he  can  claim  is  to  stand  in  the  shoes  of  Hynem 
and  Hendricks  from  whom  he  received  it.  Now,  as  to  them,  sufficient  evidence 
was  given  to  call  on  them  to  show  more  especially  how  they  came  by  it.  Solo- 
mon V.  The  Bank  of  England,  13  East,  136. 

16 


230 


ECCLESIASTICAL  LAW. 


stances  as  entitled  him  to  recover.  The  burden  of  proving  good 
faith,  however,  is  all  the  burden  which  the  law  imposes  upon 
him.' 

The  burden  of  proof,  and  the  Aveight  of  evidence  are  in  their 
nature  very  distinct ;  the  former  remains  on  the  party  affirming 
a  fact  in  support  of  his  case,  and  does  not  change  in  any  aspect 
of  the  case  ;^   the  latter  shifts  from  side  to  side  in  the  progress 


^  It  was  once  held  that  in  the  case  of  a  bill  of  exchange  or  promissory  note, 
fraudulently  put  into  circulation,  the  holder  must  show  that  he  had  used  duo  and 
reasonable  caution  in  taking  it.  But  it  has  since  been  definitely  adjudged  that 
if  he  took  it  in  good  faith,  he  is  entitled  to  recover  on  it,  and  that  even  gross 
negligence  in  him  is  not  tantamount  to  fraud,  although  it  may  be  given  in  evi- 
dence to  a  jury,  as  tending  to  prove  fraud.  The  burden  of  proving  good  faith  is 
all  the  burden  which  the  law  imposes  on  him.  Goodman  v.  Harvey,  4  Adolph  & 
El.  870,  and  6  Nev.  &  Man.  372;  Uthen  v.  Rich,  10  Adolph.  &  El.  790,  and 
2  P.  &  Dav.  385 ;  2  Greenl.  Ev.  §  ('i3!) ;  3  Kent  Com.  7th  Ed.  98  note ;  Chit,  on 
Bills,  10  Amer.  Ed.  257  ;  Byles  on  Bills,  2d  Amer.  Ed.  143,  148.  In  Arhouin  v. 
Anderson,  1  Adolph.  &  El.  N.  R.  504,  Lord  Denman  says:  "Acting  upon  the 
case  of  Goodman  v.  Harvey,  which  gives  the  law  now  prevailing  on  this  subject, 
we  must  hold  that  the  owner  of  a  bill"  (of  exchange)  "is  entitled  to  recover 
upon  it,  if  he  has  come  honestly  by  it,  and  that  that  fact  is  implied  prima  facie 
by  possession;  and  that  to  meet  the  inference  so  raised,  fraud,  felony,  or  some 
such  matter  must  be  proved."     10  Cush.  491. 

^  Fletcher,  J.  "The  counsel  for  the  defendant  seems  to  have  understood  the 
rule  of  the  Court  of  Common  Pleas  as  giving  him  a  right  to  open  and  close, 
upon  admitting  merely  a  prima  facie  case  on  the  part  of  the  plaintiff.  Upon 
this  construction,  the  defendant  might  have  the  right  to  open  and  close  while  the 
burden  of  proof  would  be  all  the  time  on  the  plaintiff.  As,  for  instance,  in  a 
suit  on  a  promissory  note  by  merely  admitting  the  signature  the  defendant  would 
give  the  plaintiff  a  prima  facie  case.  The  defendant  might  then  set  up  a  want 
of  consideration  in  defense,  and  introduce  evidence  to  overcome  the  pri  ma  facie 
case  of  the  plaintiff;  the  plaintiff  might  then  introduce  evidence  to  strengthen 
his  prima  facie  case,  and  the  weight  of  evidence  would  be  shifting  from  time  to 
time,  but  the  burden  of  proof  would  lie  on  the  plaintiff  all  the  way  through. 
It  would  be  wholly  unreasonable,  that  the  defendant  in  such  case  should  have 
the  right  to  open  and  close."  8  Cush.  G05,  606.  The  last  question  in  the  case 
is  whether  the  jury  ought  to  have  been  instructed  "  that  the  burden  was  on  the 
plaintiffs  to  prove  that  the  loss  accrued  in  some  other  way  than  from  cotton 
waste."  And  this  question  is  virtually  decided  by  the  decision,  that  the  words, 
"on  condition  that  the  applicants  take  all  risk  from  cotton  waste,"  have  not  the 
effect  of  an  exception,  but  of  a  proviso;  namely,  to  defeat  the  defendant's  prom- 
ise conditionally,  and  avoid  it  by  way  of  defeasance  or  excuse.  It  is  a  familiar 
doctrine,  that  the  party  for  whom  matter  of  excuse  is  furnished,  whether  by  stat- 
ute or  by  agreement,  must  bring  it  forward  in  his  defense,  and  support  it  by  evi- 
dence.     Coffin  V.  Denham,  B  Cush.  101. 


THE  BEST  EVIDENCE  TO  BE  GIVEN.  231 

of  a  trial  according  to  the  nature  and  strength  of  the  proof 
wliich  is  brouglit  forward  and  offered  in  support  or  denial  of  the 
main  fact  to  be  established.^ 


CHAPTER  XVI. 

THE   BEST   EVIDENCE   TO   BE    GIVEN. 

The  law  requires  the  highest  proof  of  which  the  nature  of 
the  thing  is  capable  always  to  be  given,  and  excludes  such  evi- 
dence of  facts  as,  from  the  nature  of  the  thing,  supposes  still 
better  evidence  behind  in  the  party's  possession  or  power.  The 
principle  of  the  rule  is  founded  upon  the  presumption  that  there 
is  something  in  the  better  evidence  which  is  withheld  that  mili- 
tates against  the  party  resorting  to  inferior  evidence.  This  pre- 
sumption may  not  be  very  strong,  yet  the  general  effect  of  it  is 
to  secure  fairness  and  prevent  fiaud.  The  rule  is  satisfied  by 
the  production  of  the  best  evidence  that  is  attainable  and  that  is 
applicable  to  each  particular  fact.  The  scope  of  it  is  to  exclude 
evidence  of  a  nature  merely  substitutionary,  when  primary  evi- 
dence is  attainable.  Thus,  if  a  party  offers  a  copy  of  a  deed  or 
other  writing  where  he  ought  to  produce  the  original,  this  raises 
a  presumption,  more  or  less  violent,  that  there  is  something  in 
the  original  deed  or  writing  which  would  militate  against  the 
party  offering  it  if  produced,  and  for  that  reason,  if  for  no  other, 
a  copy  is  not  ordinarily  admissible  in  evidence.  But  if  the  party 
desiring  to  use  the  copy  prove  that  the  original  deed  or  other 
writing  is  in  the  possession  or  under  the  control  of  the  adverse 
party,  who  refuses  to  produce  it  upon  regular  notice,  or  if  the 
original  has  been  lost  or  destroyed  without  his  fault,  no  such  pre- 
sumption can  obtain,  and  a  duly  authenticated  copy  will  be  ad- 
missible in  evidence.^    Where  there  is  no  substitution  of  evidence 

^  Bigelow,  J.  "  It  was  incumbent  on  the  plaintiffs  to  prove  a  liability  on  the 
part  of  the  defendant  to  pay  the  tolls  which  they  sought  to  recover  in  this  action. 
For  this  purpose  they  relied  on  the  implied  assumpsit  arising  from  proof  that  the 
defendant  had  passed  their  bridge  without  paying  the  usual  tolls.  This  made 
out  a  prima  facie  case,  and  would  entitle  them  to  recover,  unless  the  defendant 
offered  some  evidence  to  rebut  it.  But  it  does  not  follow  that  the  burden  of 
proof  was  thereby  shifted.     Central  Bridge  Corporation  v.  Butler,  2  Gray,  131. 

^  As  to  the  copy  of  the  mortgage  deed,  the  general  rule  is  that  a  copy  shall 
not  be  permitted  to  be  given  in  evidence  without  first  proving  the  loss  or  destruc- 


9?.? 


ECCLESIASTICAL  LAW. 


the  rule  is  not  infringed  even  though  there  be  a  selection  of 
weaker  or  stronger  proof,  or  an  omission  to  supply  all  the  proofs, 
capable  of  being  produced.  Thus,  if  a  deed  be  attested  by  two 
or  more  subscribing  witnesses,  the  execution  of  the  deed  may  be 
proved  by  one  of  them.^  So,  also,  a  defendant  may  give  evi- 
dence of  an  admission  by  the  plaintiff  that  the  plaintiff's 
claim  is  satisfied  even  though  it  should  appear  that  the  plaintiff 
signed  a  receipt.  Upon  the  same  principle  the  execution  of  a 
will  or  other  written  instrument  attested  by  two  subscribing  wit- 
nesses, may  be  proved,  where  there  is  no  statute  to  the  contrary, 
by  one  of  them.^     Neither  is  it  necessary  to  call  the  supposed 


tion  of  the  original.  Here  no  proof  was  produced  of  any  such  loss,  nor  are  there 
any  facts  in  the  case  from  which  it  can  be  inferred.  The  mortgagee  never  entered, 
nor  any  one  deriving  title  from  him,  before  the  commencement  of  the  present 
action ;  for  as  will  be  seen  presently,  the  deed  to  Wood  was  imperative,  and 
therefore  his  entry,  and  the  tenants  after  him,  were  unlawful.  No  attempt  has 
been  made  to  foreclose.  The  note  referred  to  in  the  mortgage  deed  has  not  been 
produced,  nor  has  any  evidence  been  given  respecting  it.  There  was  no  evidence 
of  any  demand  or  payment  of  interest,  which  might  have  been  expected  had 
there  been  a  subsisting  debt  during  the  lives  of  the  parties.  For  aught  that  ap- 
pears, the  note  might  have  been  punctually  paid.  The  copy  of  a  mortgage  deed 
accompanied  by  such  circumstances  can  have  no  weight  in  the  scale  of  evidence, 
and  ought  not  to  be  admitted.     Andi-ews  d-  nx.  v.  Hooper,  13  Mass.  475. 

^  If  the  witnesses  were  within  the  commonwealth,  proof  of  the  execution  by 
one  of  them  would  entitle  the  party  to  read  his  deed  to  the  jury;  and  the  like 
rule  applies  as  to  the  handwriting  where  both  are  shown  to  be  out  of  the  juris- 
diction of  the  court.  In  ordinary  cases,  where  the  mere  formal  execution  i.s  the 
subject  of  inquiry,  it  is  quite  sufficient  to  produce  one  of  several  subscribing 
witnf'sses,  and  if  the  secondary  evidence  is  admissible,  it  is  sufficient  to  prove  the 
handwriting  of  one  of  the  attesting  witnesses,  it  being  always  necessary,  if  there 
be  more  than  one  attesting  witness,  that  the  absence  of  them  all  should  be  satis- 
factorily accounted  for  in  order  to  let  in  the  secondary  evidence.  1  Greenl.  Ev. 
§g  574,  575  ;  Cunlife  v.  Sefion,  2  East,  183  ;  Adam  v.  Kerr,  1  Bos.  &  Pul,  3(50; 
Jackson  v.  Burton,  11  Johns.  G4;  Dudley  v.  Sumner,  5  Mass.  438;  Gelott  v. 
Goodi^peed,  8  Cush.  412. 

Ordinarily  it  is  quite  sufficient  to  call  one  of  several  subscribing  witnesses 
to  a  deed  to  prove  its  execution  sufficiently  to  authorize  the  reading  of  it  to  the 
jury.      White  and  others  v.  Wood  and  othent,  8  Cush.  414. 

^  V\  ith  regard  to  the  second  exception  to  the  sufficiency  of  the  proof  of  this 
codicil,  it  can  only  be  necessary  to  resort  to  adjudged  cases  as  they  seem  conclu- 
sive to  this  point.  There  were  two  witnesses  to  this  codicil,  to  wit,  Thompson 
Mason  and  M'Carty.  M'Carty  only  was  sworn,  and  the  probate  upon  which  it 
was  (irdorr-d  to  be  recorded  imports  that  the  two  codicils  were  proved  by  the  oath 
of  Daniel  M'Carty.     In  the  case  of  Harper  et  al.  v.  Wilson  et  al  decided  in  tho 


THE  BEST  EVIDENCE  TO  BE  GIVEN.  233 

writer  liimself  to  prove  his  liaiidwriting  ;  it  may  be  proved  by 
any  witness  who  is  acquainted  with  it.  In  prosecutions  where  it 
is  necessary  to  prove  that  the  act  for  which  the  prisoner  is  in- 
dicted was  done  without  the  consent  or  against  the  will  of  some 
other  person,  it  is  not  in  general  necessary  to  call  such  person  as 
a  witness  in  order  to  prove  the  negative,  but  such  fact  may  be 
proved  by  any  person  who  is  conversant  with  the  will  or  motive 
of  such  person.  This  rule,  that  primary  evidence,  or  the  best 
evidence,  as  it  is  termed,  must  be  adduced,  is  subject  to  general 
exceptions  where  the  public  convenience  requires  it.  Thus,  for 
example,  where  the  inquiry  arises  collaterally  between  third  per- 
sons that  an  individual  has  acted  notoriously  as  a  public  officer, 
and  his  acts  have  been  acquiesced  in  by  the  public,  is  prima  facie 
evidence  of  his  official  character  without  producing  his  commis- 
sion or  appointment.  This  rule,  however,  does  not  obtain  where 
the  officer  himself  attempts  to  justify  commission  of  an  act  com- 
plained of  which  purported  to  be  done  by  him  in  his  official 
capacity,  for  there  it  is  necessary  that  he  should  show  in  his  de- 
fense not  only  that  he  was  an  acting  officer,  but  that  he  Avas  an 
officer  de  jure;  that  is,  that  he  was  an  officer  in  truth  and  in 
right,  duly  commissioned  and  qualified   as  such.  ^      The  reason 

Court  of  Appeals  of  the  State  of  Kentuclcy,  in  1820  (2  A.  K.  Marsh,  4G5),  in 
which  the  right  to  lands  was  in  controversy,  the  probate  was  in  these  words : 
"  This  will  was  produced  in  court,  proved  by  the  oath  of  Sarah  Harper,  a  sub- 
scribing witness  thereto,  and  ordered  to  be  recorded."  There  was  another  sub- 
scribing witness  to  the  will,  and  exception  was  taken  to  the  sufficiency  of  the 
proof.  The  language  of  the  Court  in  that  case  was,  "As  to  the  proof  of  the 
execution  of  the  will  it  need  only  be  remarked,  that  its  admission  to  record  is 
sufficient  to  show  that  the  witness  by  whom  it  was  proven  in  that  court  estab- 
lished every  fact  essential  to  its  due  execution ;  and  it  is  a  settled  rule,  that 
although  more  than  one  witness  is  required  to  subscribe  a  will  disposing  of  lands, 
the  evidence  of  one  may  be  sufficient  to  prove  it."  2  Marshall,  407.  The  same 
doctrine  has  been  since  fully  recognized  in  the  case  of  Turner  v.  Turner,  I  Litt. 
Rep.  103,  adjudged  in  the  same  court  in  1822,  and  the  identity  of  the  certificate 
and  facts  in  this  case  with  those  in  the  case  of  Harper  v.  Wilson  leaves  nothing 
for  this  Court  to  deliberate  upon.     Davis  v.  Mason,  7  Curtis,  684. 

^  The  general  rule  of  law  is,  when  an  officer  justifies  an  act  complained  of 
purporting  to  be  done  in  his  official  capacity,  that  it  is  necessary  that  he  should 
aver  and  prove  in  his  defense  not  only  that  he  was  an  acting  officer,  but  that  he 
was  an  officer  in  truth  and  right,  duly  commissioned  and  qualified  to  act  as  such; 
while  as  to  all  others,  it  is  sufficient  for  them  to  aver  and  prove  that  he  was  act- 
ing as  such  officer.     Schlencker  et  al.  v.  Risley,  3  Scam.  485. 


234 


ECCLESIASTICAL  LAW. 


of  the  rule  is,  that  the  officer  himself  is  bound  to  know  whether 
he  is  legally  an  officer;  and  if  he  attempts  to  exercise  the  duties 
of  an  office  without  authority,  he  acts  at  his  peril.  Whereas  it 
is  sufficient,  so  far  as  the  rights  of  third  persons  or  the  public  are 
concerned,  that  the  officer  is  acting  in  his  official  capacity,  for  it 
would  be  unreasonable  and  oppressive  to  compel  them,  before 
they  put  faith  in  his  official  acts,  to  go  into  a  minute  examination 
of  all  the  evidence  of  his  title  to  the  office,  and  see  and  deter- 
mine that  he  has  complied  with  all  the  necessary  forms  of  law.^ 
The  cases  which  most  frequently  call  for  the  application  of 
the  rule  that  the  best  evidence  must  be  produced,  is  where  oral 
evidence  is  offered  instead  of  written  evidence.  These  may  be 
classified  under  three  heads  :  first,  those  instruments  which  the 
law  requires,   in    order  to  their  validity,   should  be  in  writing ; 


^  Breese,  Judge  :  "  There  are  two  manifest  objections  to  the  third  plea.  The 
first  is,  the  defendant  does  not  allege  he  was  duly  elected  and  qualified  to  the 
ofSce  under  which  he  justifies  the  trespass.  The  rule  is,  where  an  officer  himself 
attempts  to  justify  his  acts  done  by  virtue  of  his  otEce,  he  must  allege  and  prove 
himself  an  officer  dejure.  ScTilencker  v.  Risley,  3  Scam.  R.  483.  We  know  of 
no  different  rule  anywhere,  and  the  reason  is,  that  being  the  party  exercising  the 
office,  his  right  to  do  so,  or  the  evidence  of  it,  is  in  his  own  possession  and 
power.      Case  v.  Hall,  21  Ills.  635. 

If  the  commissioners  of  highways  acted  without  taking  the  oath  required  by 
law,  they  were  liable  to  a  penalty;  or  the  town,  upon  their  default  in  complying 
with  the  requisition  of  the  statute,  miglit  have  proceeded  to  a  new  choice  of 
commissioners.  But  if  the  town  did  not  (and  it  does  not  appear  that  they  did  in 
this  case),  the  subsequent  acts  of  the  commissioners,  as  such,  were  valid  as  far 
as  the  rights  of  third  persons  and  of  the  public  were  concerned  in  them.  They 
were  commissioners  de  facto,  since  they  come  to  their  office  by  color  of  title; 
and  it  is  a  well  settled  principle  of  law,  that  the  acts  of  such  persons  are  valid 
when  they  concern  the  public  or  the  rights  of  third  persons  who  have  an  interest 
in  the  act  done,  and  this  rule  is  adopted  to  prevent  the  failure  of  justice.  The 
limitation  to  this  rule  is  as  to  such  acts  as  are  arbitrary  and  voluntary  and  do 
not  affect  the  public  utility.  The  doctrine  on  this  subject  is  to  be  found  at  large 
in  the  case  of  llie  King  v.  Lisle  (Andrews,  2()3).  It  certainly  did  not  lie  with 
the  defendant  as  a  mere  ministerial  officer  to  adjudge  the  act  of  the  commis- 
sioners null.  It  was  his  duty  to  record  the  paper  valeat  quantum  valei'e  potest. 
It  was  enough  for  him  that  those  persons  had  been  duly  elected  commissioners 
within  the  year,  and  were  in  the  actual  exercise  of  the  office.  It  may  be  that 
the  oath  was  duly  taken,  and  that  the  omission  to  fill  the  certificate  of  it  was 
owin<f  to  casualty  or  mistake.  'J'lie  validity  of  the  title  of  the  commissioners  to 
their  office  must  not  be  determined  in  this  collateral  way.  The  People  v.  Col- 
lins, 7  John.  553. 


THE  BEST  EVIDENXE  TO  BE  GIVEX.  235 

second,  those  Avliich  the  parties  tliemselves  have  reduced  to  writ- 
ing; and  third,  all  other  writings,  the  existence  of  wliich  are 
material  to  the  case.  Oral  evidence  can  not  be  received  as  a 
substitute  for  any  writing  which  the  law  requires  to  be  reduced 
to  writing;  hence  oral  evidence  is  not  admissible  as  to  records,  pub- 
lic documents,  official  examinations,  deeds,  or  wills.  Nor  is  oral 
evidence  admissible  to  prove  the  promise,  or  undertaking  of  one 
man  to  answer  for  the  debt,  default,  or  miscarriage  of  another, 
or  to  prove  a  contract  or  agreement  not  to  be  performed  within 
one  year;  nor  to  prove  a  contract  in  relation  to  lands  and  tene- 
ments, the  law  having  required  in  these  cases  that  the  evidence 
of  the  transaction  should  be  in  Avriting. 

As  long  as  the  writing  exists,  and  is  in  the  power  of  the  party 
to  produce  it,  the  evidence  of  the  transaction  can  not  be  made 
out  by  other  or  substitutionary  evidence;  and  in  such  cases,  the 
admission  of  the  fact,  unless  solemnly  made  as  a  substitute  for 
other  proof  by  a  party,  does  not  dispense  with  the  direct  proof 
of  the  writing,  by  which  it  is  sought  to  affect  him ;  for  if  such 
proof  were  admissible,  the  obvious  effect  of  it  would  be  to  dispense 
with  the  record  and  other  writings.  There  is,  however,  this  dis- 
tinction where  the  record  or  other  writing  is  merely  a  collateral 
or  subsequent  memorial  of  the  fact,  such  as  the  registry  of 
births,  marriages,^  deaths,  and  the  like;  and  it  is  not  part  of  the 
fact  to  be  proved,  it  has  not  this  exclusive  character;  but  any 
other  legal  evidence  is  admissible  to  establish  the  same  fact.^ 

^  This  was  a  libel  for  a  divorce  a  vinculo  for  the  adultery  of  the  respondent. 
After  proving  the  marriage  of  the  parties  by  the  Rev.  Dr.  Stillman,  in  1803,  Par- 
ker, for  the  libelant,  read  a  certificate  from  the  Rev.  Dr.  Lathrop  of  a  second 
marriage  with  one  Mary  Sawyer,  such  as  is  usually  ^-eceived  as  evidence  of  a 
lawful  marriage,  in  prosecutions  of  this  kind.  But  the  Court  thought  it  not 
sufiScient  evidence  for  the  purpose  for  which  it  was  offered.  The  fact  of  the 
second  marriage  must  be  proved  on  oath.     Ellis  v.  Ellis,  11  Mass.  91. 

The  recording  of  marriage  was  intended  to  perpetuate  the  evidence  of  the 
fact,  after  the  witnesses  present  shall  have  died.  But  a  copy  of  such  record  is  not 
80  satisfactory  evidence  as  the  testimony  of  witnesses.  These  last,  indeed,  are 
necessary  to  prove  the  indentity  of  the  parties.  Commonwealth  v.  Num-oss, 
9  Mass.  49.3, 

2  This  was  an  indictment  against  the  defendants  for  lewdly  and  lasciviously 
associating  and  cohabiting  together;  the  said  Margery  being  alleged  to  be  the 
wife  of  Thomas  Barbarick.  At  the  trial  the  solicitor-general  offered  to  prove 
the  marrige  by  the  testimony  of  a  sister  of  the  said  Thomas.     She  testified  that 


236 


ECCLESIASTICAL  LAW. 


Oral  evidence  can  not  be  substituted  for  any  written  contract 
or  conveyance,  for  in  such  case  the  written  instrument  may,  in  a 
sense,  be  regarded  as  the  ultimate  fact  to  be  proved ;  and  this  is 
especially  true  where  the  question  involved  relates  to  the  proof 
of  deeds,  contracts,  and  negotiable  securities ;  in  fact,  the  princi- 
pal object  of  committing  contracts  of  every  kind  to  writing  is 
for  preserving  a  memorial  of  them  more  lasting  and  more 
authentic  than  the  mere  memory  of  witnesses.  Accordingly,  a 
party  is  not  permitted  to  recover  in  an  action  of  ejectment,  or  in 
a  suit  for  use  and  occupation,  where  there  is  a  written  deed  or 
contract  of  tenancy  without  producing  it.  If  it  comes  out  upon 
the  cross-examination  of  the  plaintiff's  witnesses,  the  defendant 
may  move  to  exclude  the  oral  testimony ;  but  if  the  plaintiff 
makes  out  a  prima  facie  case  without  sliowing  that  there  was  any 
written  contract,  the  defendant,  if  he  relies  upon  the  written  con- 
tract, will  have  to  produce  it; ^  otherwise  the  plaintiff  might, 
upon  the  mere  assertion  of  the  defendant,  be  nonsuited  for  the 
non-production  of  a  written  instrument  which,  if  it  had  been  pro- 
duced, might  turn  out  not  to  apply  to  the  contract  in  question. 

Declarations  of  the  tenant,  or  other  parol  evidence  sufficient 
to  establish  an  agreement  to  pay  rent,  is  admissible,  notwith- 
standing it  appears  that  the  holding  is  under  a  written  agree- 


nbout  twelve  years  since  the  said  Thomas  and  Margery  left  the  witness's  house 
for  the  declared  purpose  of  going  to  the  house  of  a  clergyman  about  two  miles 
distant  in  order  to  be  by  him  joined  in  marriage  ;  that  after  an  absence  sufficient 
for  the  purpose  they  returned,  declaring  that  they  were  married;  and  that  they 
lived  together  as  man  and  wife,  having  several  children,  until  a  year  since,  when 
the  liusl)and  was  committed  to  the  State  prison.  The  jury  having  found  the  de- 
fendants guilty,  a  new  trial  was  moved  for  on  account  of  the  admission  of  said 
evidence,  and  it  was  resolved  by  tlie  whole  Court  that  the  evidence  was  insuffi- 
cient— it  was  not  the  best  which  the  case  admitted.  If  these  persons  were 
married,  there  must  be  better  evidence  of  the  fact.  It  could  be  proved  by  the 
record  of  the  clergyman,  or,  at  any  rate,  by  the  testimony  of  persons  actually 
present.      Commonwealth  v.  Littlejohn  &  AI.  15  Mass,  162. 

^  The  judgment  must  be  reversed.  It  appearing  from  the  examination  of 
plaintiff's  witnesses  that  the  contract  upon  which  they  relied  was  in  writing,  they 
were  boiiiul  to  show  it;  or,  if  in  the  possession  of  the  opposite  l)arty,  notice  to 
pi-odtice  it  sliouUl  have  been  given  before  the  parol  evidence  was  admitted.  It 
is  fairly  to  be  inferred  from  the  return,  that  tliis  ol)jocl,ion  was  taken,  though  it 
is  not  distinctly  stated  in  terms.  liogfivs  v.  Van  Jlolscn,  12  Jolin.  221 ;  Rex  v. 
I?edstov\  '[  13.  &  Ad.;  Thomas  v.  Griffin,  G  Bing.  533;  Fielder  v.  Ray,  6 
Bintr.  232. 


THE  BEST  EVIDENCE  TO  BE  GIVEN.  237 

ment ;  but  whei'e  the  question  is  not  merely  as  to  tlie  occupation 
of  lands,  but  as  to  the  pex'son  under  -whom  it  is  held,  if  there  be  a 
written  agreement  showing  the  fact  it  must  be  produced.^  It  is 
not  allowable,  on  cross-examination  in  the  statement  of  a  ques- 
tion to  a  witness,  to  represent  the  contents  of  a  letter  or  other 
writings,  and  to  ask  the  witness  whether  he  wrote  a  letter  or  other 
writing  to  any  person  with  such  contents  or  to  like  effect ;  be- 
cause counsel  might  thus  put  the  court,  jury,  or  committee  in 
possession  of  a  part  only  of  the  contents  of  the  written  paper ; 
and  even  if  the  witness  acknowledged  the  writing  or  letter  to  be 
in  his  handwriting,  he  can  not  be  questioned  as  to  its  contents, 
but  the  whole  letter  or  other  writing  must  be  read  in  evidence. 

Oral  evidence  can  not  be  substituted  for  any  writing,  the  ex- 
istence of  which  is  disputed,  and  which  is  material  either  to  the 
issue  between  the  parties  or  to  the  credit  of  witnesses,  and  is  not 
merely  the  memorandum  of  some  other  fact;  for  by  applying  the 
rule  of  such  cases,  the  court  acquires  a  knowledge  of  the  whole 
contents  of  the  instrument,  which  may  have  a  different  effect 
from  that  made  by  the  statement  of  a  part.^  So  rigidly  has  this 
rule  been  enforced,  that  where  a  Avitness's  deposition  was  taken 
in  another  State,  or  in  a  foreign  country,  and  in  answer  to  in- 
terrogatories he  stated  the  contents  of  a  written  instrument  or 
letter  which  was  not  produced,  it  was  formerly  held  that  that  part 
of  the  deposition  referring  to  the  contents  of  the  writing  should 
be  suppressed,  notwithstanding  the  witness  was  beyond  the  juris- 
diction of  the  court  and  there  being  no  means  to  compel  him  to 
produce  the  writing.  But  this  rule  is  now  moditied  so  as  to  admit 
proof  of  the  contents  of  a  written  instrument  Avhere  the  original 
is  beyond  the  jurisdiction  of  the  court.  Where  the  law  requires 
books,  records,  and  registers  to  be  kept  for  public  convenience, 
their   contents   may   be   proved  by  an   examined   copy.^      This 

^  Doe  V.  Earveij,  8  Bing.  241, 

2  Queen's  Case,  2  Broad.  &  Bing,  287;  1  Phil.  Ev.  422. 

*  It  was  objected  that  as  the  grantee  was  within  the  jurisdiction  of  the  Court 
he  should  have  been  summoned  to  produce  the  deed.  But  this  objection  can 
not  be  sustained.  In  the  case  of  Eaton  v.  Campbell,  7  Pick.  10,  this  point  was 
fully  considered,  both  upon  principle  and  practice,  and  the  rule  was  established 
that  the  copy  of  a  deed  from  the  registry  is  good  evidence  prima  facie,  and  dis- 
penses with  tlie  production  of  the  original,  except  where  a  grantee  relies  on  the 
immediate  deed  to  himself,  or  where,  from  the  nature  of  the  conveyance,  the 


238  ECCLESIASTICAL  LAW. 

exception  has  obtained  because  of  the  public  inconvenience  which 
the  removal  of  such  records  and  documents  might  occasion — es- 
pecially if  they  were  wanted  in  two  places  at  the  same  time. 
The  exception  does  not  extend  to  the  exclusion  of  the  original, 
but  wherever  an  examined  copy  of  a  public  record  is  evidence, 
there  the  original,  when  produced,  may  also  be  used.  This  ex- 
ception does  not  extend  to  an  answer  in  Chancery,  deposition  or 
affidavits,  where  the  party  is  indicted  for  perjury  therein,  for  in 
such  case  the  original  must  be  produced  in  order  to  identify  the 
defendant  by  proof  of  his  handwriting.^ 

Another  exception  to  the  rule  rejecting  secondary  evidence 
has  been  allowed  where  the  evidence  is  the  result  of  voluminous 
facts,  or  the  inspection  of  many  books  and  papers,  the  examina- 
tion of  which  could  not  conveniently  take  place  during  the  progress 
of  the  trial.  ^  Thus,  a  Avitness  who  has  examined  the  books  and 
accounts  of  the  parties,  though  he  may  not  give  evidence  of  par- 
ticular facts  of  their  contents,  may  testify  to  the  general  balance 
shown  by  such  books  and  accounts  without  producing  them. 
And  upon  the  same  principle,  where  the  question  is  upon  the 
solvency  or  insolvency  of  a  person,  a  witness  who  has  examined 
the  books  and  securities  of  such  person  at  a  particular  time, 
may  state  the  result  of  siich  examination.^  So,  also,  where  books 
and  documents  introduced  in  evidence  at  a  trial  are  multifarious 
and  voluminous,  and  of  such  a  character  as  to  render  it  difficult 
for  the  jury  to  comprehend  material  facts  without  schedules  or 

deed  is  presumed  to  be  in  his  own  custody  or  power.  Scanlan  v.  Wright,  13 
Pick.  527. 

In  England,  on  the  convejance  of  land,  all  the  title  deeds  are  delivered  to 
the  purchaser,  and  It  is  reasonable  there  to  require  him  to  produce  the  original 
deed  given  to  a  prior  grantee.  In  this  commonwealth  the  mode  of  conveyancing 
is  different.  Here  the  grantee  takes  only  the  immediate  deed  to  himself,  rely- 
ing on  the  covenants  of  his  grantor.  He  has  no  right  to  the  possession  of  the 
title  deeds  of  the  estate,  and  to  require  him  to  produce  all  the  original  deeds  for 
twenty  years  or  more,  and  to  bring  in  the  subscribing  witnesses,  would  be  un- 
reasonable and  oppressive.  It  will  be  found  convenient  to  have  a  copy  from  the 
register's  office  prima  facie  evidence,  even  where  the  grantee  lives  within  the 
commonwealth,  until  the  case  assumes  a  different  shape  on  a  question  of  fraud. 
Eaton  V.  Campbell,  7  Pick.  12. 

^  Rex  V.  Howard,  I  M.  &  Rob.  189. 

M  Phil.  Ev.  4:51,  AW?,,  4:54. 

*  Meyer  v.  Scpton,  2  Slark.  274. 


THE  BEST  EVIDENCE  TO  BE  GIVEN.  239 

abstracts  thereof,  it  is  within  the  discretion  of  the  judge  or  other 
presiding  officer  to  admit  such  schedules,  verified  by  the  testimony 
of  the  person  by  whom  they  were  prepared,  allow^ing  the  adverse 
party  an  opportunity  to  examine  them  before  the  case  is 
submitted.^ 

The  case  of  inscriptions  on  walls  and  fixed  tables,  mural 
monuments,  gravestones,  surveyors'  marks  on  trees  denoting 
boundaries,  as  they  can  not  be  produced  in  court,  may  be  proved 
by  secondary  or  oral  evidence.^ 

Still  another  exception  exists  in  favor  of  the  admission  of 
secondary  evidence  in  the  examination  of  a  witness  on  the  voir 
dire,  where  the  witness  upon  such  examination  discloses  the  ex- 
istence of  a  written  instrument  affecting  his  competency,  the  con- 
tents of  such  written  instrument  may  be  inquired  into  for  the 
reason  that  the  other  party,  or  the  party  making  the  objection, 
may  have  been  entirely  ignorant  of  the  existence  of  the  written 
instrument  until  it  was  disclosed  by  the  witness.  On  the  same 
principle,  if  a  witness  on  the  voir  dire  admits  facts  tending  to 
render  him  incompetent,  the  effect  of  which  has  been  subse- 
quently removed  either  by  a  release  or  other  writing,  the  con- 
tents of  such  release  or  of  the  Ma'iting  may  be  inquired  into 
without  producing  it.     Where  the  objection  arises  on  the  voir 

^  The  defendant  further  objects  that  schedules  made  from  the  original  papers 
and  documents  previously  proved  in  the  case,  showing  certain  data  and  results 
obtained  therefrom,  and  verified  by  the  witness  by  whom  they  were  prepared,  were 
improperly  admitted.  But  it  appears  to  us  that  questions  of  this  sort  must 
necessarily  be  left  very  much  to  the  discretion  of  the  judge  who  presides  at  the 
trial.  It  would  doubtless  be  inexpedient  in  most  cases  to  permit  ex  parte  state- 
ments of  facts  or  figures  to  be  prepared  and  submitted  to  the  jury.  It  should 
only  be  done  where  books  and  documents  are  multifarious  and  voluminous  and 
of  a  character  to  render  it  difficult  for  the  jury  to  comprehend  material  facts 
without  the  aid  of  such  statements,  and  even  in  such  cases  they  should  not  be 
admitted  unless  verified  by  persons  who  have  prepared  them  from  the  originals  in 
proof  and  who  testify  to  their  accuracy,  and  after  ample  time  has  been  given  to 
the  adverse  party  to  examine  them  and  test  their  correctness.  Such  was  the 
course  pursued  in  the  present  case,  and  there  can  be  no  doubt  that  in  a  trial 
embracing  so  many  details  and  occupying  so  great  a  length  of  time  as  the  case 
at  bar,  during  which  a  great  mass  of  books  and  documents  were  put  in 
evidence,  it  was  the  only  mode  of  attaining  to  an  intelligible  view  of  the  cause 
before  the  jury.  Boston  and  Worcester  Railroad  Corporation  v.  Dana,  I 
Gray,  104. 

2  Doe  V.  Coyles,  6  C.  &  P.  360. 


240  ECCLESIASTICAL  LAW. 

dire  the  rule  is,  that  it  may  be  removed  on  the  voir  dire.^  Where, 
however,  the  witness  produces  the  writing,  it  must  be  read. 

We  have  previously  said  that  a  parol  admission  is  not  receiv- 
able for  the  purpose  of  proving  the  contents  of  a  written  instru- 
ment nor  for  the  purpose  of  contradicting  documentary  evidence, 
neither  will  a  parol  admission  dispense  with  the  production  of  a 
record.  There  appears,  however,  to  have  been  some  difference 
of  opinion  at  nisi  prius  upon  the  point  whether  an  admission  as 
to  the  contents  of  a  wn-itten  instrument  may  be  given  in  evidence 
against  the  party  making  the  admission  when  he  is  shown  to  be  in 
possession  of  such  written  instrument.  Lord  Tenterden  is  said  to 
have  held,  that  a  witness  could  not  be  asked  what  a  party  to  a  suit 
had  said  as  to  the  contents  of  a  deed  executed  by  himself  with- 
out giving  the  party  notice  to  produce  the  deed  or  account  for 
its  non-production.^  On  the  other  hand,  Mr.  Justice  Park  is 
reported  to  have  ruled  upon  the  objection  taken  to  the  question, 
that  what  a  party  to  a  suit  says  is  always  evidence  against  him- 
self, whether  it  relates  to  the  contents  of  a  written  instrument  or 
any  thing  else.^ 

In  a  case  in  Massachusetts  it  was  held  by  the  Supreme 
Court  of  that  State,  that  where  the  agreement  of  the  parties  was 
reduced  to  writing,  the  admissions  of  one  of  the  parties  as  to  the 
effect  of  the  writing  was  correctly  rejected.  If  such  admissions 
varied  the  terms  of  the  written  contract,  they  were  not  compe- 
tent;  if  they  did  not,  they  were  immaterial.'* 

A  distinction  has  also  been  taken,  and  is  strictly  observed, 
between  a  confessio  juris  and  a  confessio  facti,  or  a  con- 
fession in  court  or  a  confession  out  of  court.  If  the  admission 
or  confession  is  of  the  first  named  character,  it  is  not  admissible 
in  evidence  ;  for  to  receive  such  an  admission  would  be  to  allow 
the  party  to  place  construction  upon  the  written  instrument  in 
place  of  leaving  its  construction  to  the  court,  to  whom  it  properly 

'  Lord  Eilenborough,  Chief-Justice :  There  is  no  question  before  this  Court 
but  tlie  competency  of  the  witness  upon  the  voir  dire.  What  he  answers  must 
be  taken  for  better  and  worse.  If  he  answers  falsely  he  may  be  indicted  for 
])erjury.  The  Kincj  v.  Tlie  Inhahitants  of  Gisbnrn,  15  East,  58;  Miller  v. 
Marincni    Churchy  7  Grccnl.  51  ;   1  Phil.  Ev.  154,  155. 

^  liloxam  V.  Elscr,  1  C.  &  P.  558. 

»  Earle  v.  rickcn,  5  C.  &  P.  512. 

*  Goudall  V.  Hmith,  9  Cush.  529;  Moore  v.  Hitchcock.  4  Wend.  293. 


THE  BEST  EVIDENCE  TO  BE  GIVEN.  241 

belongs  ;  and  often  the  party  may  not  know  the  legal  effect  of 
the  instrument,  and  his  admission  of  its  legal  effect  may  be  very 
erroneous.^ 

But  where  the  existence  and  not  the  formal  execution  of  the 
instrument  is  the  subject  of  investigation,  or  where  the  instrument 
is  collateral  to  the  principal  facts,  the  confession  of  the  party  is 
admissible  as  primary  evidence  of  the  facts  recited  in  the  written 

^  It  may  be  proper,  in  this  place,  to  consider  the  question  whether  a  verbal 
admission  of  the  contents  of  a  writing  by  the  party  himself  will  supersede 
the  necessity  of  giving  notice  to  produce  it;  or,  in  other  words,  whether  such 
admission,  being  made  against  the  party's  own  interest,  can  be  used  as  primary 
evidence  of  the  contents  of  the  writing  against  him  and  those  claiming  under 
him.  Upon  this  question  there  appears  some  discrepancy  in  the  authorities  at 
nisi  prms.  But  it  is  to  bo  observed  that  there  is  a  material  difference  between 
proving  the  execution  of  an  attested  instrument  when  produced,  and  proving  the 
party's  admission  that  by  a  written  instrument,  which  is  not  produced,  a  certain 
act  was  done.  In  the  former  case  the  law  is  well  settled,  as  we  shall  hereafter 
show,  that  when  an  attested  instrument  is  in  court,  and  its  execution  is  to  be 
proved  against  a  hostile  party,  an  admission  on  his  part,  unless  made  with  a  view 
to  the  trial  of  that  cause,  is  not  sufficient.  The  rule  is  founded  on  reasons  pecul- 
iar to  the  class  of  cases  to  which  it  is  applied.  A  distinction  is  also  to  be  ob- 
served between  a  confessio  Juris  and  a  confessio  facti.  If  the  admission  is  of 
the  former  nature  it  falls  within  the  rule  already  considered  and  is  not  received, 
for  the  party  may  not  know  the  legal  effect  of  the  instrument,  and  his  admission 
of  its  nature  and  effect  may  be  exceedingly  erroneous.  But  where  the  existence 
and  not  the  formal  execution  of  a  writing  is  the  subject  of  inquiry,  or  where  the 
writing  is  collateral  to  the  principal  facts,  and  it  is  on  these  facts  that  the  claim 
is  founded,  the  better  opinion  seems  to  be,  that  the  confession  of  the  party  precisely 
identified  is  admissible  as  primary  evidence  of  the  facts  recited  in  the  writing, 
though  it  is  less  satisfactory  than  the  writing  itself  Very  great  weight  ought  not 
to  be  attached  to  evidence  of  what  a  party  has  been  supposed  to  have  said,  as  it 
frequently  happens  not  only  that  the  witness  has  misunderstood  what  the  party 
said,  but  that  by  unintentionally  altering  a  few  of  the  expressions  really  used,  he 
gives  an  effect  to  the  statement  completely  at  variance  with  what  the  party 
actually  did  say.  Upon  this  distinction  the  adjudged  cases  seem  chiefly  to  turn. 
Thus,  where  in  an  action  by  the  assignees  of  a  bankrupt  for  infringing  a  patent 
right  standing  in  his  name,  the  defendant  proposed  to  prove  the  oral  declaration 
of  the  bankrupt,  that  by  certain  deeds  an  interest  in  the  patent  right  had  been 
conveyed  by  him  to  a  stranger,  the  evidence  was  properly  rejected  ;  for  it  in- 
volved an  opinion  of  the  party  upon  the  legal  effect  of  the  deeds.  On  the  other 
hand,  it  has  been  held  that  the  fact  of  the  tenancy  of  an  estate,  or  that  one  per- 
son at  a  certain  time  occupied  it  as  the  tenant  of  a  certain  other  person,  may  be 
proved  by  oral  testimony.  But  if  the  terms  of  the  contract  are  in  controversy, 
and  they  are  contained  in  a  writing,  the  instrument  itself  must  be  produced.  1 
Greenl.  134,  135. 


242  ECCLESIASTICAL  LAW. 


instrument.  Though  such  admission  is  justly  regarded  as  of  less 
value  or  weiglit  than  the  writing  itself,  as  it  often  happens  that 
tlie  witness  has  misunderstood  what  the  party  said,  and  the 
change  of  expression  of  a  few  words  often  gives  a  meaning  to 
the  statement  completely  at  variance  with  the  confession.  Where 
the  terms  of  the  contract  do  not  arise  colLaterally,  but  are  the 
essence  of  the  controversy,  and  are  contained  in  the  written  in- 
strument, the  instrument  itself  must  be  produced.  The  acknowl- 
ment  of  confessions  of  a  party  as  to  title  to  real  property,  though 
they  may  be  good  to  support  a  tenancy,  or  to  satisfy  doubts  in 
cases  of  possession,  yet  they  are  not  to  be  received  against  writ- 
ten evidence  of  title.  ^ 


1  In  Jachwn  v.  Shearman,  6  Johns.  Rep.  21,  the  Court  say:  "That  the  ac- 
knowledgments of  a  party  as  to  title  are  a  dangerous  species  of  evidence,  and 
tbouo-h  good  to  support  a  tenancy,  or  to  satisfy  doubts  in  cases  of  possession, 
they  ought  not  to  be  received  as  evidence  of  title.  The  proof  offered  was  that 
John  Brown  had,  in  conversation  with  several  persons,  both  before  and  after 
M'Vey's  entry,  claimed  the  land  as  absolute  owner.  These  were  not  declara- 
tions made  by  him  whilst  in  possession,  and  to  show  the  character  of  his  posses- 
sion, but  declarations  as  to  the  title;  and  as  such  they  were  inadmissible. 
Per  Curiam.  Assuming  that  the  plaintiff  made  out  in  the  first  instance  a 
prima  facie  evidence  of  good  title,  the  validity  of  the  defense  turned  upon  the 
point  of  the  competency  of  the  parol  proof  of  the  lease,  and  its  assignments. 
The  lease  belonged  to  the  plaintiff  upon  the  statement  of  the  case,  and  was  in 
his  possession  previous  to  the  circuit,  1808.  Notice  was  given  to  him  previous 
to  that  circuit  to  produce  it  upon  the  trial.  The  cause  was  not  tried  until  the 
circuit  in  180!),  but  the  effect  of  the  notice  was  not  spent.  It  applied  to  the 
trial  without  reference  to  the  time.  It  does  not  appear  that  the  cause  was 
noticed  for  trial  in  1808  ;  and  if  it  had  so  appeared,  it  would  not  have  destroyed 
the  effect  of  the  notice  in  reference  to  a  subsequent  circuit,  unless  it  had  ap- 
peared that  the  notice  was  special,  and  confined  to  that  particular  circuit.  The 
object  of  the  notice  was  general,  and  to  Inform  the  plaintiff  that  the  lease  in  his 
possession  would  be  wanted  upon  the  trial;  and  whenever  the  plaintiff  noticed 
the  cause  for  trial,  he  was  bound  to  furnish  the  lease,  or  abide  by  the  conse- 
quences. If  after  such  notice  given  the  plaintiff  had  parted  with  the  lease,  he 
ought  to  have  apprised  the  defendant  of  it,  so  that  he  might  have  known  where 
to  look  for  it.  In  this  case  the  lease  was  in  the  Court  of  Chancery;  but  as  it 
docs  not  appear  by  what  means  it  came  there,  we  must  presume  it  was  placed 
there  at  the  in--tance  of  the  plaintiff,  and  was  liable  to  be  withdrawn  upon  his 
apjilication.  For  tlie  purpose  of  the  notice  it  was  still  to  be  considered  as  under 
hi.s  control,  and  in  his  possession.  If  the  parol  proof  was  admissible,  then  the 
defendant  showed  that  O'Reilly  had  no  title.  Ills  wife  had  only  a  life  estate, 
and  after  her  death  the  title  under  the  lease  reverted  back  to  Henry  Shearman, 


THE  SUBSTANCE  OF  THE  ISSUE.  243 


CHAPTER  XVII. 

THE   SUBSTANCE   OF   THE   ISSUE. 

Ix  this  connection  it  may  be  well  to  define  what  is  meant  in 
legal  language  by  tlie  term  issue,  as  we  shall  often  have  occasion 
to  use  the  term.  An  issne  may  be  defined  to  be  a  single,  cei'tain, 
and  material  point,  arising  out  of  the  allegations  of  the  plaintiff 
and  defendant;  and  it  is  either  an  issue  of  law  or  of  fact;  but 
it  is  only  with  the  latter  that  we  shall  have  occasion  to  speak 
in  this  chapter,  and  that,  only  so  far  as  to  show  the  materiality 
of  the  testimony.  One  of  the  most  important  rules  that  governs 
the  introduction  of  evidence  is,  that  it  is  sufficient  if  the  sub- 
under  whom,  as  his  son  and  heir,  the  defendant  possessed.  The  next  point  in 
the  case  is  as  to  the  acknowledgments  of  Henry  Shearman.  These  acknowl- 
edgments of  the  party  as  to  title  to  real  property  are  generally  a  dangerous 
species  of  evidence;  and  though  good  to  support  a  tenancy  or  to  satisfy  doubts 
in  cases  of  possession,  they  ought  not  to  be  received  as  evidence  of  title.  This 
would  be  to  counteract  the  beneficial  purposes  of  the  statute  of  frauds.  The 
extent  of  the  title  transferred  from  Shearman  to  his  daughter,  and  from  her  to 
O'Reilly,  rested  upon  higher  evidence  than  upon  parol  proof  of  acknowledg- 
ments by  the  party.  It  rested  upon  the  written  assignments  of  the  lease,  and 
the  legal  evidence  of  the  extent  and  effect  of  these  assignments  ought  to  pre- 
vail.    Jackson  v.  Shearman^  6  John.  19. 

Proof  of  the  confessions  of  Annine  that  his  mortgage  was  not  a  lien  on  the 
land  was  properly  rejected.  6  John.  Rep.  20;  John.  Dig.  213,  and  the  cases 
there  referred  to.  As  between  Annine  and  the  subsequent  mortgagee,  to 
whom  the  declarations  alleged  to  have  been  made,  the  proof  might  have  been 
admissible  on  the  ground  of  fraud,  if  shown  to  have  misled  or  injured  him;  but 
not  between  Annine  and  third  persons.  Jackson  v.  Jackson,  5  Cowen,  175.  In 
Jackson  v.  Shearman,  6  John.  19,  it  appeared  from  parol  admissions  that  there 
had  been  a  written  conveyance;  and  the  Court  excluded  the  parol  proof,  saying 
that  the  extent  of  the  title  transferred,  etc.,  rested  upon  higher  evidence  than 
upon  parol  proof  of  acknowledgment  by  the  party.  It  rested  upon  the  written 
assignment  of  the  lease.      Jackson  v.  Cole,  4  Cowen,  594. 

The  evidence  of  declarations  made  by  the  defendant  avail  nothing;  fur, 
although  parol  declarations  of  tenancy  have  been  received  with  certain  qualifi- 
cations, parol  proof  has  never  yet  been  admitted  to  destroy  or  take  away  a  title. 
To  allow  parol  evidence  to  have  that  effect  would  be  introducing  a  new  and 
most  dangerous  species  of  evidence.  The  statute  to  prevent  frauds  and  perju- 
ries, which  has  been  considered  the  magna  charta  of  real  property,  avoids  all 
estates  created  by  parol  and  all  declarations  of  trusts,  excepting  resulting 
trusts,  regarding  any  lands,  tenement  or  hereditaments.     Yet,  in  defiance  of 


24-4  ECCLESIASTICAL  LAW. 


stance  of  the  issue  is  made  out.  Lord  Ellenborougli  once  held 
"That  there  are  two  sorts  of  allegations,  the  one  of  matter  of 
substance,  which  must  be  substantially  proved,  the  other  descrip- 
tion, that  must  be  literally  proved."^  No  allegation  of  matters 
of  fact  which  is  descriptive  of  the  identity  of  that  which  in  laAv 
is  essential  to  the  charge  can  ever  be  rejected.  Thus,  where  the 
allegation  was  that  the  defendant  executed  his  promissory  note 
on  a  certain  day,  the  substance  of  the  allegation  was  the  execu- 
tion of  the  note,  and  proof  that  he  executed  it  on  any  day  will 
support  the  allegation,  as  time  is  not  material ;  but  if  the  allega- 
tion had  been  that  the  defendant  executed  his  promissory  note, 
and  that  the  note  bore  date  on  a  certain  day,  the  date  being  de- 
scriptive of  the  note  and  essential  to  its  identity,  must  be  proved 
as  laid,  so,  also,  in  justifying  an  action  of  trespass  for  the  tak- 
ing of  the  plaintiff's  cattle  damage  feasant,  because  they  were 
upon  the  close  of  the  defendant.  In  such  a  case  the  averment 
of  a  freehold  title  is  legally  sufficient;  but  if  the  defendant 
states  that  he  was  seized  of  the  close  in  fee,  the  averment  of 
seizin   in   fee   becomes   an   essential   descriptive   averment,    and 

this  statute,  we  are  asked  to  divest  the  defendant  of  what  appears  to  be  com- 
plete title  to  the  premises  by  her  parol  declarations.  This  can  not  be  listened  to. 
Jackson  v.  Gary,  16  John.  305. 

^  There  are  two  sorts  of  allegations:  the  one  of  matter  of  substance  which 
must  be  substantially  proved ;  the  other  of  description  which  must  be  literally 
proved.  The  question  is  whether  this  be  an  allegation  of  the  former  sort.  The 
allegation  is,  that  the  plaintifif  was  prosecuted  "  until  afterwards,  to  wit,  on  the 
morrow  of  the  Holy  Trinity,  in  the  forty-sixth  year  aforesaid,  etc.,  she  was  in  due 
manner  acquitted."  The  substance  of  the  allegation  is  no  more  than  that  the 
plaintiff  was  acquitted  upon  that  prosecution  ;  and  to  support  this  action  it  must 
also  appear  that  she  was  acquitted  before  the  action  was  brought.  The  day  of  ac- 
quittal is  not  alleged  with  a  provt  patet  per  rccordum  ;  the  averment  is,  that  the 
acquittal  took  place  on  the  morrow  of  the  Holy  Trinity,  when  the  record  pro- 
duced states  that  it  took  place  on  Tuesday  next  after  Easter  Term ;  and  cer- 
tainly there  would  be  a  repugnancy  between  the  allegation  and  the  proof,  if  it 
were  to  be  considered  as  a  specific  allegation  of  the  fact  of  the  acquittal,  as 
of  a  time  which  13  shown  to  have  been  before  the  action  brought,  then  the  re- 
pugnancy is  immaterial,  and  the  proof  in  sul>stance  supports  the  allegation. 
And  so  it  appears  to  me  to  do.  If  it  had  gone  on  to  state  that  the  acquittal  was 
on  a  certain  day  as  appears  by  the  record,  that  might  have  been  considered  as 
descriptive  of  the  record,  and  then  the  variance  would  have  been  fatal.  The 
ground  therefore  on  which  I  consider  that  tlie  case  of  Pope  v.  Foster  ought  not 
to  bind  us  as  having  been  decidcul  against  principle  is,  that  this  is  an  allegation 
of  substance  and  not  of  dcscriijtion.      I'lircell  v.  Macnamara,  i)  East,  16P. 


THE  SUBSTANCE  OF  THE  ISSUE.  245 

must  be  proved  as  alleged,  for  the  reason  that  the  essential  and 
non-essential  averments  are  so  connected  as  to  be  incapable  of 
separation. 

So  in  an  action  of  covenant,  where  the  breach  of  covenant 
assigned  is  that  the  defendant  has  not  used  the  farm  in  a  husband- 
like  manner,  but  has  committed  waste,  to  which  the  defendant 
replied,  that  he  had  not  committed  waste,  but  had  used  the  farm 
in  a  good  and  husbandlike  manner;  and  under  this  averment  it 
was  held  that  the  plaintiff  could  not  give  evidence  of  any  unhus- 
bandlike  treatment  of  the  farm  not  amounting  to  waste,  for  the 
form  of  the  averment  narrows  the  issue  to  this  point.  ^  In  ac- 
tions for  slander,  courts  used,  at  one  time,  to  hold  that  the  plain- 
tiff was  bound  to  prove  the  words  spoken  precisely  as  laid  in  the 
complaint,  but  it  is  now  settled  that  it  will  be  suflficient  if  the 
plaintiff  prove  some  material  parts  of  the  words  alleged.  If 
the  complaint  contains  several  actionable  words,  the  plaintiff  will 
be  entitled  to  recover,  on  proving  some  of  them.^ 

Any  allegation  which  narrows  and  limits  that  which  is  essen- 
tial, is  necessarily  descriptive;  thus,  in  contracts,  libels,  and  writ- 
ten instruments,  every  part  operates  by  Avay  of  description  of 
the  whole.  Therefore,  in  this  class  of  cases  the  statement  of 
names,  sums,  dates,  durations,  etc.,  being  essential  to  the  iden- 
tity of  the  Avritmg,  must  be  precisely  proved  as  alleged ;  and 
this  rule  obtains  whether  the  allegation  is  founded  in  contract 
or  tort.^ 

1  Harris  v.  Mantle,  3  Term  R.  307. 

^Campagnon  v.  Martin,  2  Bl.  R.  790. 

^  Lord  Ellenborough,  Chief- Justice,  now  delivered  judgment:  Tliis  was  an 
action  against  the  two  defendants  for  deceit,  stated  to  have  been  committod 
in  a  joint  sale,  alleged  in  the  declaration  to  have  been  made  by  them  of  some 
sheep,  their  joint  property,  and  to  have  been  warranted  by  them  to  be  stock  or 
sound  sheep,  and  which  proved  to  be  unsound;  and  the  question  is,  whether  the 
nonsuit,  which  proceeded  on  the  ground  of  there  being  no  evidence  in  this  case 
to  affect  William  King,  one  of  the  defendants,  be  maintainable?  The  argument 
on  the  part  of  the  defendant  has  been,  that  this  is  an  action  founded  on  the  tort; 
that  torts  are,  in  their  nature,  several ;  and  that,  in  actions  of  tort,  one  defend- 
ant may  be  acquitted  and  others  found  guilty.  This  is  unquestionably  true,  but 
still,  is  not  sufficient  to  decide  the  present  question.  The  declaration  alleges  the 
defeat  to  have  been  effected  by  means  of  a  warranty  made  by  both  the  defend- 
ants in  the  course  of  a  joint  sale  by  them  both  of  sheep,  their  joint  property. 
The  joint  contract  thus  described  is  the  foundation  of  the  joint  warrantv.  laid  in 

17 


246  ECCLESIASTICAL  LAW. 

Where  the  phiintiff  avers  performance  of  a  condition  preced- 
ent, he  can  not  sustain  his  averment  by  a  tender,  or  an  excuse, 
for  nonperformance.^  So  an  averment  of  a  defendant  that  he 
had  sent  money  to  the  pLaintifF  by  mail,  is  not  supported  by  evi- 
dence that  he  sent  treasury  notes  ;^  but  it  has  been  held  that  a 
defendant  may  prove  under  a  plea  of  payment  in  bank  notes, 
negotiable  notes  on  individuals,  or  a  debt  already  due  from  the 
payee  to  the  obligor,  accepted  as  payment.'  It  is  true,  says 
the  court,  that  payment  literally  means  a  discharge  of  the  obli- 
gation according  to  its  letter,  but  courts  have  extended  the  issue 
more  to  the  spirit  and  confined  it  less  to  the  letter. 

An  allegation  in  a  real  action,  that  the  plaintiff  was  the  owner, 
is  supported,  ^7;*/»m/ac?'e,  by  evidence  that  he  was  in  possession; 
for  the  law  presumes  the  possessor  to  be  the  owner  of  the  title. 
So  where  the  owner  of  a  mill  brought  an  action  to  recover  dam- 
ages for  a  diminution  of  profits  occasioned  by  an  obstruction 
erected  by  the  defendant,  it  being  alleged  in  the  declaration  that 
the  plaintiff  was  possessed  of  the  mill,  and  it  appearing  in  evi- 
dence that  the  mill  was  occupied  by  a  tenant  at  will  at  a  reduced 
rent  on  account  of  the  obstruction,  it  was  held  that  the  evidence 
supported  the  declaration,  as  the  possession  of  a  tenant  at  will 
was  the  possession  at  Avill  of  his  landlord.'* 

tlie  declaration  and  essential  to  its  legal  existence  and  validity;  and  it  is  a  rule 
of  law,  that  the  proof  of  the  contract  must  correspond  with  the  description  of  it 
in  all  materiiil  respects;  and  it  can  not  be  questioned  that  the  allegation  of  a  joint 
contract  of  sale  was  not  only  material  but  essentially  necessary  to  a  joint  war- 
ranty, alleged  upon  record  to  have  been  made  by  the  supposed  sellers.  By  what- 
ever circumstances  and  in  whatever  action,  be  the  same  debt,  assumpsit  or  tort 
the  allegation  of  a  contract  becomes  necessary  to  be  made  ;  and  such  allegation, 
or  any  part  of  it,  can  not  (as  here  it  certainly  can  not)  be  rejected  as  mere  sur- 
plusage— such  allegation  requires  proof  stricly  corresponding  therewith;  it  is,  in 
its  nature,  entire  and  indivisible,  and  must  be  proved  as  laid  in  all  material  re- 
spects. Weall  V.  Wm.  Kiug  and  Henry  Kinr/,  12  East,  453,  ei  seq.;  Bristoic  v. 
Wnyhl,  Douglass,  0(55 ;  Churchill  v.  WilJcins,  1  Term  R.  447 ;  1  Stark.  Ev. 
:?8(;-388. 

'  Diickham  v.  Smith,  5  Mon.  372. 

^  Fog  net  V.  Chadlei/,  3.  Conn.  R.  .^)34. 

^  Whitin(/fon  ei  al.  v.  Jinherts,  4   Munroe,  173. 

*  The  damage  to  the  plaintiff  was  immediate;  it  reduced  the  value  of  his 
property  and  the  rent;  as  owner  of  tlie  property  he  is  entitled  to  the  action. 
The  question  onl}'  is,  whether  his  ])r()(if  supports  his  decl.aration.  He  declares 
he  was  seized  and  possessed  of  the  mill;   the  evidence  was,  that  part  of  the  time 


THE  SUBSTANCE  OF  THE  ISSUE.  247 

Where,  in  covenant,  the  declaration  charged  that  during  a 
specified  period  of  time  the  defendant  deprived  the  plaintiff  of 
the  water  necessary  for  his  mill  by  diverting  it  therefrom   and 

he  carried  on  the  mill  in  company  with  his  son,  and  for  the  residue  of  the  time 
it  was  carried  on  by  his  two  sons.  It  does  not  appear  for  what  time  or  inulor 
what  terms  the  sons  had  use  of  the  mill;  it  must  be  presumed,  therefore,  that 
they  were  but  tenants  at  will.  The  injury  was,  in  fact,  done  while  the  plaintiff 
was  in  possession,  and  before  any  contract  with  his  sons;  for  by  the  contract  a 
deduction  was  made  from  tbe  rents  to  accrue  during  the  time  they  should  hold. 
The  daily  diminution  of  profits  was  consequential  upon  a  wrong  done  while  the 
plaintiff  was  in  actual  possession.  On  this  ground,  and  because  the  damage  was 
only  to  the  plaintiff,  we  think  the  proof  supports  the  declaration.  In  the  case  of 
Starr  v.  Jackson,  cited  in  the  argument,  the  question  was  merely  on  the  form  of 
the  action,  whether  it  should  be  trespass  or  case.  Here  there  is  no  question 
about  the  form  of  the  action,  but  merely  whether  the  evidence  shows  that  the 
plaintiff  was  in  possession.  Technically  he  was,  because  the  possession  of  the 
tenant  at  will  is  the  possession  of  the  landlord,  and  is  enough  to  prove  the  fact 
alleged  of  possession:  and  as  to  the  injury,  it  is  clear  that  it  was  done  to  the 
plaintiff,  and  that  all  the  damage  was  suffered  by  him.  Under  these  circum- 
stances, it  would  be  too  strict  to  put  the  parties  to  the  expense  of  another  trial 
if  there  were  a  technical  error  in  the  declaration,  which,  however,  we  do  not 
think  satisfactorily  made  out.  It  is  said  that  in  the  case  of  Baker  v.  Sanderson, 
reported  in  3  Pick.  3-18,  a  different  doctrine  was  advanced  by  the  Court:  but  we 
do  not  see  that  case  in  this  light.  The  second  count  in  the  declaration  was  ob- 
jected to  because  it  alleged  that  other  persons  than  the  then  plaintiff  were  in  the 
actual  possession  of  the  mill  during  part  of  the  time  for  which  damages  occa- 
sioned by  the  defendant  had  been  given  by  the  jury;  but  that  objection  was  over- 
ruled, because,  in  the  same  count,  it  was  averred  that  the  plaintiff  had  reduced 
his  rent  on  that  account.  Now,  it  is  inferred  from  this  in  argument,  that  because 
in  the  present  case  the  plaintiff  has  alleged  that  he  was  possessed,  this  allegation 
is  contradicted  by  the  evidence  that  the  sons,  during  part  of  the  time,  had  the 
use  of  the  mill ;  but  such  an  inference  is  not  necessary.  The  objection  was 
that  the  count  was  bad  because  it  alleged  that  during  part  of  the  time  when 
the  injury  happened  the  mills  were  in  possession  of  another.  This  would  have 
been  insuperable,  as  is  stated  in  the  opinion,  but  for  the  subsequent  averment  of 
the  reduction  of  the  rent,  for  the  plaintiff  would  have  himself  shown  that  the 
lessee,  and  not  be,  had  suffered  the  damage. 

In  the  present  case  the  objection  is  not  to  the  count,  but  to  the  evidence. 
The  plaintiff  avers  that  he  himself  was  seized  and  possessed;  it  turns  out  that 
for  one  part  of  the  time  one  of  his  sons  occupied  with  him,  and  that  for  another 
part  his  two  sons  occupied  without  him — not  under  lease,  but,  as  we  suppose,  by 
some  verbal  contract.  This  evidence  did  not  negative  his  possession,  for  in  law 
he  was  still  in  possession  ;  and  then  as  to  his  right  to  recover  under  these  cir- 
cumstances, it  appearing  that  on  account  of  the  obstruction  he  had  reduced  the 
rent,  the  case  ie  brought  within  the  principle  on  which  the  case  of  Baker  v. 
Sanderson  was  decided.     Sumner  v.  Tileston,  1  Pick.  201. 


248  ECCLESIASTICAL  LAW. 


suffering  it  to  be  diverted  by  others  ;  held,  that  the  plaintiff  was 
not  limited  in  his  proof  by  acts  committed  by  the  defendant  or 
other  persons  to  the  period  stated  in  the  declaration,  but  might 
prove  previous  acts  in  consequence  of  which  the  injury  was  sus- 
tained during  the  alleged  time.^ 

"Where  tlie  gist  of  the  action  is  negligence,  the  party  will  be 
confined  to  the  species  of  negligence  averred  in  the  complaint. 
Thus,  where  the  plaintiff  alleges  misfeasance  as  the  gravamen  of 
the  action,  he  Avill  not  be  permitted  to  go  for  nonfeasance.^  So 
in  an  action  by  a  passenger  in  a  coach  against  the  owner  for  an 
injury  done  him  in  overturning  the  coach,  where  the  complaint 
alleged  that  the  servant  of  the  defendant  negligently  drove,  con- 
ducted, and  managed  the  coach,  the  plaintiff  can  not  recover  if 
the  negligence  consisted  in  sending  out  an  insufficient  coach.' 
But  where  the  charge  was  that  the  defendant  so  carelessly  and 
negligently  provided,  fitted  out,  and  managed  their  stage  coacji 
that  while  they  were  driving  it  broke  down  and  injured  the  plain- 
tiff, and  the  injury  turned  out  to  have  been  occasioned  by  the 
insufficiency  of  the  coach  itself,  it  was  held  that  there  was  no 
variance.^ 

^  EoUensivorth  v.  Dunbar,  9  Munf.  199. 

^Jackson,  Judge,  says:  "It  was  suggested  at  the  argument,  that  there 
was  evidence  produced  at  the  trial  to  prove  the  specific  injury  as  alleged,  and 
that  it  was  probably  not  reported,  as  having  no  influence  on  the  questions  raised 
on  the  trial.  But  supposing  that  this  could  now  be  made  to  appear,  still,  as  the 
jury  were  instructed  to  assess  damages  '  which  the  plaintiff  had  sustained  by  the 
defendant's  neglect  to  make  repairs,'  it  is  necessary  to  consider  whether  defend- 
ant is  liable  for  such  damages  under  the  circumstances  of  this  case;  for,  if  he 
is  not  so  liable,  the  verdict  must  be  set  aside,  as  we  can  not  know  how  much  the 
jury  may  have  assessed  on  that  account.  The  first  objection  is,  that  the  declara- 
tion does  not  set  forth  any  such  neglect  as  the  ground  of  damage,  but  relies  alto- 
gether on  a  misfeasance  by  the  defendant.  There  is  an  important  difference 
between  those  two  kinds  of  injuries.  If  one  has  a  private  way  over  my  land,  I 
am  liable  to  an  action  for  stopping  the  way,  but  not  for  suffering  it  to  be  out  of 
repair.  And  in  cases  where  a  defendant  would  be  liable  for  a  nonfeasance  as 
well  as  for  a  misfeasance,  the  declaration  ought  to  show  distinctly  with  which  of 
them  he  is  charged,  that  he  may  prepare  his  defense  accordingly.  It  seems, 
therefore,  very  clear  that  as  this  declaration  now  stands,  evidence  of  the  de- 
fendants  neglect  to  make  repairs  was  inadmissible,  and  that  no  damages  ought 
to  have  been  assessed  for  such  neglect."     Doaiie  v.  Badger,  12  Mass.  08. 

'  Maijor  v.  Humphreys,  1  Carr.  &  Payne,  25. 

*  I'utnam,  Judge,  in  delivering  the  opinion  of  the  Court,  said:  "The  plaintiff 
alleges  that  lie  lias  received  a  grievous  injury  by  reason  of  the  defendants  omitting 


THE  SUBSTANCE  OF  THE  ISSUE.  249 

Under  a  count  against  a  sheriff  for  a  voluntary  escape,  the 
plaintiff  is  entitled  to  recover  if  he  proves  a  negligent  one,^  but 
in  trespass,  if  the  defendant  pleads  a  license  to  enter,  and  issue  is 
taken  thereon,  evidence  of  a  lease  will  not  support  the  plea.^ 

to  provide  a  suitable  coach  in  which  they,  for  a  reward,  undertook  to  carry  liim 
safely.  He  says  that  the  defendants  disregarded  their  duty  in  that  behalf,  and 
so  '  carelessly  and  negligently  provided,  fitted  out,  managed,  and  conducted 
their  coach  that  it  broke  down  and  broke  the  plaintiflf's  leg."  And  it  is  con- 
tended for  the  defendants,  that  the  plaintiff  can  not  be  permitted  to  prove  any 
unskillfulness  in  the  modoi  of  driving  or  conducting  it;  that  the  terms 'pro- 
vided' and  'fitted  out,'  as  applicable  to  the  coach,  mean  the  furnishing  it  with 
convenient  internal  accommodation,  independent  of  the  carriage  itself,  and  do 
not  extend  to  the  sufficiency  or  safety  of  the  coach  for  the  transportation  of  pas- 
sengers. We  can  not  think  that  the  terms  employed  should  have  so  limited  a 
construction.  We  think  that  the  plaintiff  sets  forth  his  claim  to  damages  as  well 
from  the  insufficiency  of  the  coach  as  from  the  carelessness  of  the  driver  in  con- 
ducting it.  The  declaration  states  that  the  defendants  received  the  plaintiff  into 
their  stage  coach  for  the  usual  hire  and  reward,  therefor  to  be  faithfully  and 
carefully  conveyed  and  transported  from,  etc.  Having  done  that,  the  law  im- 
posed upon  the  defendants  the  duty  of  furnishing  a  suitable  coach  and  of  having 
it  properly  conducted  for  the  purpose.  In  Webster's  Dictionary,  to  provide  is 
defined,  'to  make  ready  for  future  use,'  'to  furnish,'  'to  supply.'  This  word 
is  used  in  an  enlarged  sense  in  Park  on  Ins.  (7th  edit.)  352.  The  assured  is 
'  indispensably  bound  to  2^ror?(ie  a  good  ship,  able  to  perform  the  voyage,'  and 
to  fit  is  defined  by  Webster  'to  make  suitable,'  'furnishing  a  thing  suitable  for 
the  use  of  another,'  '  to  prepare,'  '  to  furnish  with  things  proper  or  necessary.' 
The  duty  of  the  defendants,  then,  was  to  supply  a  coach  suitable  for  the  safe 
conveyance  of  passengers,  furnished  with  all  things  necessary  and  proper.  The 
plaintiff  alleges  that  they  neglected  to  do  so;  and  he  proves  that  the  nut  to 
secure  one  of  the  wheels  to  the  axle  was  unfit  for  its  purpose.  The  wheel  came 
off,  and  the  coach  broke  down  in  consequence  of  that  neglect.  We  are  all  of 
opinion  that  there  was  no  variance  between  the  evidence  and  the  allegation." 
Warew.  Gmj,  11  Pick.  108. 

^  Bonafous  v.  Walker^  2  Term  R.  126. 

2  Jackson,  Judge,  said:  "As  to  the  first  count,  it  is  very  clear  that  a  license 
by  the  guardian  would  determine  at  his  death.  This  is  not  denied  ;  but  it  is  said 
that  the  facts  stated  in  the  plea  show  that  this  was  a  lease,  not  a  license,  and  that 
if  it  was  a  lease,  the  defendant  was  not  a  trespasser  by  holding  over  after  tiie 
end  of  the  term,  but  would  be  a  tenant  at  sufferance  until  a  re-entry  by  the 
plaintiff  or  a  notice  to  quit;  and  that  the  defendant  ought  not  to  be  prejudiced 
by  having  miscalled  it  a  license. 

If  such  a  mistake  had  occurred  in  a  deed  or  any  act  in  paio,  the  Court 
would  not,  perhaps,  be  precluded  from  construing  the  expression  according  to 
its  legal  effect  and  the  true  intent  of  the  parties.  But  more  strictness  is  required 
in  pleadings^.  The  party  is  to  state  his  case  according  to  the  legal  effect  and 
operation  of  the  facts  on  which  he  relies.  It  is  not  sufficient  to  display  the  evi- 
dence on  the  record  and  leave  it  to  the  Court  to  infer  that  there  was  a  feoffment, 


250  ECCLESIASTICAL  LAW. 


The  same  principle  applies  in  criminal  as  in  civil  proceedings, 
and  in  criminal  prosecutions  the  substance  of  the  charge  ordi- 
narily is  all  that  is  necessary  to  be  proved.  Thus,  the  accused 
may  be  found  guilty  of  a  part  of  the  charge,  and  acquitted  as  to 
the  residue,  or  lie  may  be  convicted  upon  one  charge  or  specifi- 
cation and  acquitted  upon  another,  or  upon  one  part  of  a  charge 
capable  of  division,  and  not  guilty  of  the  other  part;  as,  on  a 
charge  for  composing  and  publishing  a  libel,  the  defendant 
mav  be  found  guilty  of  publishing  only.  In  general,  wliere 
from  the  evidence  it  appears  thnt  the  defendant  has  not  been 
guilty  to  the  extent  of  the  charge  specified,  he  may  be  found 
guilty  so  far  as  the  evidence  Avarrants.  But  if  a  contract  or 
other  written  instrument  be  described,  or  set  out  in  an  indictment 
or  other  criminal  charge,  it  must  be  proved  as  laid.  Where 
the  accusation  includes  an  offense  of  an  inferior  degree,  the  jury 
or  committee  may  discharge  the  defendant  of  a  higher  crime,  ajid 
convict  him  of  a  less  atrocious  one.  Thus,  upon  an  indictment 
for  burglarious  stealing,  the  prisoner  may  be  convicted  of  the 
theft,  and  acquitted  of  the  burglarious  entry.' 

So  upon  an  indictment  for  murder  the  defendant  may  be  con- 
victed of  manslaughter  (2  Hale,  302).  On  an  indictment  for 
stealing  privately  from  the  person,  the  defendant  may  be  found 
guilty  of  larceny,  or  on  an  indictment  for  grand  larceny,  the 
offense  may  be  reduced  to  petit  larceny,  and  robbery  may  be 
softened  into  felonious  theft ;  and,  on  an  indictment  founded  on  a 
statute,  the  defendant  may  be  found  guilty  of  a  common  law 
offense.  The  only  exception  to  this  rule  would  seem  to  be  wliere 
the  prisoner,  being  originally  indicted  for  a  different  offense, 
could  be  deprived  of  any  advantage  which  he  would  otherwise 
be  entitled  to  claim;  in  which  case  the  prosecutor  is  not  per- 
mitted to  oppress   the  defendant   by  altering  the  mode  of  pro- 

a  lease,  or  a  license;  but  he  must  say  that  the  party  did  enfeoff,  or  did  demise, 
etc.  If  the  defendant  in  this  case  had  pleaded  a  lease  by  the  guardian,  the 
plaintiff  mi<(ht  have  traversed  It,  and  from  what  appears  in  the  case,  there  seems 
to  be  no  doubt  she  would  have  done  so,  because,  on  the  general  issue  to  this 
same  count  she  obtained  a  verdict.  It  being  pleaded  as  a  license,  she  had  no 
occasion  to  deny  it,  although  it  might  be  wholly  untrue,  because  she  had  a  better 
answer,  namely,  that  all  the  trespasses  complained  of  were  committed  after  the 
expiration  of  the  supposed  license.  Johnson  v.  Curler^  16  Mass.  444. 
»  1  Leach,  3G;  2  East,  P.  &  C.  516;  1  Hale,  559,  5G0. 


THE  SUBSTANCE  OF  THE  ISSUE.  251 

ceeding.  A  defendant,  therefore,  can  not  be  found  guilty  of  a 
misdemeanor  on  an  indictment  for  a  felony.^  A  variance  in 
criminal  cases,  as  to  an  allegation  of  numbers,  magnitude,  or 
value,  is  in  general  unimportant,  provided  that  it  does  not  fall 
within  the  exception  before  stated  in  civil  cases,  and  that  what  is 
proved  in  respect  to  these  particulars  is  sufficient  to  constitute 
the  offense  charged.^ 

Where  a  person  or  thing,  mentioned  in  a  charge  or  specifica- 
cation,  is  described  with  unnecessary  particularity,  it  must  be 
proved;  thus,  an  indictment  for  stealing  a  black  horse,  the  color 
need  not  have  been  mentioned,  yet  having  mentioned  the  color 
in  the  indictment  or  specification,  a  variance  between  the  allega- 
tion and  proof  in  this  respect  is  fjital  (1  Stark.  Ev.  374).  So 
in  an  indictment  for  stealing  a  promissory  note  or  bill  of  ex- 
change, though  it  would  be  sufficient  to  describe  it  generally  as  a 
promissory  note  or  bill  of  exchange,  yet  if  the  name  of  the  maker 
ne  stated  or  averred  in  the  indictment,  it  must  be  proved.  So, 
also,  where  property  is  stolen,  the  name  of  the  owner  must  be 
alleged  and  proved  as  laid.^  It  is  sufficient,  if  a  thing  is  de- 
scribed in  an  indictment,  bill  of  charges,  or  specifications,  by  its 
generic  name,  if  it  has  one,  and  such  a  charge  may  be  sup- 
ported by  proof  of  a  species,  which  comes  within  such  generic  de- 
scription. Thus,  if  the  charge  be  of  a  felonious  assault  with  a 
club,  and  the  proof  be  of  such  an  assault  with  a  stone  ;  or,  if  the 
charge  be  of  a  wound  with  a  sword,  and  the  proof  be  of  a  wound 
with  an  ax,  yet  the  charge  is  substantially  proved. 

In  an  indictment  for  perjury  in  open  court,  the  term  of  the 
court  must  be  correctly  stated,  and  strictly  proved ;  so,  also, 
where  the  term  is  designated  by  the  day  of  the  month,  the  pre- 
cise day  is  material.  So  a  written  contract,  Avhen  set  out  in  an 
indictment,  must  be  strictly  proved;  but  it  was  held  that  an  aver- 
ment setting  out  a  promissory  note,  according  to  its  purport  and 
effect,  and  not  according  to  its  tenor  and  effect,  is  supported  by 
proof  of  a  note  of  the  same  legal  effect.^      A  complaint  or  dec- 


1 12  Mod.  520. 

2i?ex  V.  Je7iks,  2  East,  P.  &  C.  514;   2  Camp.  264;   1  Hale,  513. 
*  Clark's  Case,  Russ.  &  Ry.  358. 

■*The  Court  say:   "As  the  indictment  set  out  the  note  accordinsr  to  its  pur- 
port and  effect,  and  not  according  to  its  tenor,  we  think  the  variance  is  not  ma- 


252 


ECCLESIASTICAL  LAW. 


laration  wliicli  sets  forth  an  executory  agreement  of  the  defendant, 
and  alleges  an  excuse  from  the  performance  thereof,  by  the 
waiver  of  the  defendant,  is  not  supported  by  proof,  that  the  de- 
fendant failed  to  comply  with  his  part  of  the  agreement  within 
the  time  fixed  by  the  agreement.  ^ 

There  can  be  no  doubt  of  the  admissibility  of  a  written  contract 
in  evidence  in  support  of  the  contract  declared  on,  where  the 
on]}'  objection  is,  that  the  declaration  does  not  aver  that  the  con- 
tract was  in  writing.  Such  an  averment  is  not  required  even  in 
declarations  or  contracts,  that  are  within  the  statutes  of  fraud, 
tliat  is,  such  contracts  as  the  law  requires  to  be  in  writing  before 
they  are  legally  enforceable.^      While  this  is  true  in  actions  upon 

terial.  /  promised  would  be  construed  to  mean  /  promise.  But  it  was  not 
sufficiently  proved  that  the  offense  was  committed  in  the  county  of  Worces- 
ter. The  evidence  was  only  that  the  note  was  here  uttered.  It  is  clear  from 
authority  that  the  offense  of  forging  in  the  county  can  not  be  inferred  from  the 
fact  of  uttering  and  publishing  in  the  county."  Comviomcealih  v.  Parment^ 
5  Pick.  279. 

^  Metcalf,  J.,  said:  "The  plaintiff's  declaration  sets  forth  an  executory  agree- 
ment of  the  defendant  to  do  certain  work,  for  a  certain  sum,  and  within  a  cer- 
tain time,  on  materials  to  be  furnished  by  the  plaintiff,  and  alleges  that  the  plain- 
tiff did  furnish  the  materials  to  the  defendant  in  season  for  him  to  complete  the 
stipulated  work  within  the  stipulated  time.  And  the  question  is,  whether  this 
declaration  was  legally  proved  by  evidence,  that  the  plaintiff  furnished  the  ma- 
terials to  the  defendant,  but  not  in  season  for  him  to  complete  the  work  thereon, 
according  to  the  agreement,  and  that  the  defendant  nevertheless  received  and 
worked  on  them.  We  are  of  opinion  that  it  was  not,  but  that  there  was  a  fatal 
variance  between  the  allegation  and  the  proof. 

"It  is  a  cardinal  rule  of  evidence  that  allegations  essential  to  the  plaintiff's 
claim  must  be  ])roved.  In  the  declaration  in  this  case  it  was  essential,  in  order 
to  show  the  plaintiff's  claim,  that  he  should  allege  that  he  furnished  or  was 
ready  to  furnish  the  defendant  with  the  materials  on  which  he  was  to  work,  and 
in  season  for  him  to  complete  the  work  on  them  within  the  stipulated  time;  or 
else,  that  li(t  should  allege  a  sufficient  excuse  for  not  so  furnishing  them.  1  Chit. 
Pi.  (ith  Am.  Ed.  H51,  358;  6  Greenlf  111,  Il'i;  2  Met.  502,  503.  The  plaintiff 
has  adopted  the  former  course,  and  has  alleged  his  performance  of  what  the 
agreement  required  of  him,  and  to  prove  this  allegation,  he  relies  on  evidence 
of  matter  which  excused  him  from  such  performance,  to  wit:  a  waiver  thereof 
by  the  defendant.  But  a  waiver  by  one  party  to  an  agreement  of  the  perform- 
since  of  a  stipulation  in  his  favor,  is  not  a  performance  of  that  stipulation  by  the 
oilier  party.  It  is  an  excuse  for  non-))erformance,  and  as  above  stated  should  bo 
so  pleaded,  t'olt  v.  Miller,  10  Cush,  50,  51;  Metzner  v.  Bolton,  24  Engl. 
Law  &  Eq.  5!i7. 

'''  And  tiien;  can  bo  no  doubt  as  to  tiic  iulnilsslhllily  of  a  written  contract  in 
evidence  to  jirove  the  contract  declared  on,  though  the  declaration  does  not  aver 


THE  SUBSTANCE  OF  THE  ISSUE.  253 

contracts  not  under  seal,  the  uniform  rule  is,  that  if  any  part  of 
the  contract  proved  should  vary  essentially  from  the  contract 
stated  in  the  complaint,  or  other  pleading,  the  objection  will  be 
fatal;  for  a  contract  is  an  entire  thing,  an  indivisible.  But 
Avhere  a  contract  consists  of  collateral  provisions,  and  of  distinct 
parts,  and  the  gravamen  is  that  certain  acts  are  specified  in  the 
contract,  which  the  defendant  engaged  to  do,  but  has  not  done,  it 
will  be  sufficient  to  state  the  time,  manner,  and  other  circum- 
stances of  its  performance,  and  the  failure  of  the  other  party  to 
perform  the  act  complained  of,  without  making  any  mention  of 
the  other  acts  enumerated  in  the  contract.^  The  entire  consider- 
ation must  be  stated  correctly,  and  the  entire  act  to  be  done  in 
virtue  of  such  consideration,  and  Avith  such  statement  the  proof 
must  agree.  Where  a  contract  is  in  the  alternative,  at  the  op- 
tion of  the  defendant,  the  allegation  must  not  be  of  an  absolute 
contract,  or,  if  the  averment  be  to  perform  on  a  certain  day,  or  on 
the  happening  of  a  certain  event,  and  the  proof  be  to  perform  in 

that  it  was  in  writing.  It  is  generally  unnecessary  in  declaring  on  a  simple 
contract  which  is  in  writing  to  allege  it  to  be  so.  This  allegation  is  not  re- 
quired even  in  declarations  on  the  contracts  that  are  within  the  statute  of  frauds. 
Davenport  v.  Neio  England  Mutual  Fire  Insurance  Compamj,  6  Cush.  340. 

^  Bayley,  B.,  said:  "I  take  it  it  to  be  perfectly  clear  that  an  agreement  may 
be  void  as  to  one  part,  and  not  of  necessity  void  as  to  the  other."  "  It  by  no 
means  follows  that  because  you  can  not  sustain  a  contract  in  the  whole,  you  can 
not  sustain  it  in  part,  provided  your  declaration  be  so  framed  as  to  meet  the 
proof  of  that  part  of  the  contract  which  is  good." 

The  three  leading  cases  cited  by  the  defendants  counsel  in  the  present  case, 
to  show  that  a  contract  void  in  part  by  the  statute  of  frauds  is  void  in  the  whole 
are,  Lord  Lexington  v.  Clarke,  2  Vent,  223  ;  Chater  v.  Beckett,  1  T.  R.  201 ;  and 
Thomas  v.  Williams,  10  Barn!  &  Cress.  664.  All  these  cases  were  considered 
by  the  Court  in  Wood  v.  Benson,  before  cited,  and  were  shown  to  have  been 
rightly  decided,  upon  another  ground,  to  wit,  that  of  a  variance  between  the  dec- 
laration and  the  evidence.  In  each  of  those  cases,  the  declaration  stated  the 
entire  agreement,  including  that  part  of  it  which  was  void. 

Bayley,  B.,  said:  "These  cases  are  to  be  supported  on  the  principle  of  the 
failure  of  proof  of  the  contract  stated  in  the  declaration;  but  they  do  not  estab- 
lish that  if  you  can  separate  tlie  good  from  the  bad  you  may  not  enforce  such 
part  of  the  contract  as  is  good." 

The  special  count  in  the  present  case  sets  forth  the  whole  agreement  of  the 
parties.  Part  of  that  agreement  being  within  the  statute  of  frauds  is  void,  and, 
therefore,  the  contract  as  alleged  was  not  proved,  and  could  not  be  proved.  The 
plaintiff,  therefore,  can  not  recover  on  that  count.  Ervine  v.  Stone  ei  another, 
6  Cush.  511,  512. 


254  ECCLESIASTICAL  LAW. 


a  reasonable  time,  there  is  a  variance.  An  averment  which  is 
merely  matter  of  inducement  to  the  action  need  not  be  proved 
M-ith  the  same  degree  of  strictness  and  precision  that  is  required 
in  matters  of  substance;  thus,  where  an  action  was  brought  to 
recover  double  the  value  of  goods,  which  had  been  removed  for 
the  purpose  of  preventing  a  distress,  and  the  complaint  or  dec- 
laration stated  a  certain  sum  to  be  in  arrears  for  rent,  it  was  de- 
cided that  the  plaintiff  was  entitled  to  recover,  although  the 
notice  of  the  distress  was  for  a  less  sum.^  In  the  case  under 
consideration,  the  damage  was  not  to  be  measured  by  the  quan- 
tity of  rent,  but  by  the  value  of  the  goods  that  had  been  re- 
moved; and  it  was,  therefore,  perfectly  immaterial  whether  the 
particular  sum  stated  in  the  complaint  was  in  arrears  or  not. 

There  is  a  material  distinction  between  redundancy  in  the 
allegation  and  redundancy  in  the  proof.  In  the  case  of  redun- 
dancy in  the  averment,  a  variance  between  the  allegation  and 
the  proof,  imder  most  circumstances,  will  be  fatal  if  the  redundant 
allegation  is  descriptive  of  that  which  is  essential ;  but  redun- 
dancy in  the  proof  can  never  vitiate,  because  more  is  proved  than 
is  alleged,  unless  the  matter  superfluously  proved  goes  to  contra- 
dict some  essential  part  of  the  allegation.^ 

It  may  not,  perhaps,  be  easy  to  define  the  meaning  of  the 
term  redundant  in  a  short  sentence  such  as  we  have  room  for  in 
this  connection,  but  the  true  meaning  of  the  term  we  take  to  be 
this :  the  defendant  is  not  to  insert  in  his  plea  any  matter  foreign 
to  the  allegation  he  is  called  upon  to  answer,  though  such  matter 
may  be  admissible  in  a  plea  or  answer  ;  but  he  may,  in  his  plea 
or  answer,  set  up  matter  by  way  of  explanation,  pertinent  to  the 
issue,  even  if  such  matter  be  wholly  incapable  of  proof;  but  if 
such  matter  is  introduced  into  the  plea  or  answer,  and  not  after- 
wards proved,  the  court  will  give  no  credence  to  it.  It  often 
Ijecomcs  an  important  inquiry  how  far  redundancy  of  allegation 
is  material  to  be  proved.  The  safe  rule  is,  that  if  the  averment 
may  be  struck  out  without  destroying  the  plaintiff's  right  of 
action,  it  will  not  be  necessary  to  prove  it ;  but  it  is  otherwise  if 
the   averment   can  be   struck  out  without  getting  rid  of  a  part 


^  Gromnei  v.  Phillips^  3  Term  R.  G43 ;  Stoddard  v.  Palmer,  3  Barn  &  Cress.  2. 
2  1  Stark.  Ev.  JOL 


THE  SUBSTAN'CE  OF  THE  ISSUE. 


essential  to  the  cause  of  action,  for  then,  thougli  tlie  averment  be 
more  particuhar  than  it  need  have  been,  the  Avhole  must  be 
proved.^  Thus,  in  an  action  of  tort  for  the  breacli  of  a  warranty 
for  selling  goods  unfit  for  sale,  the  declaration  averred  that  the 
defendant  had  knowledge  of  the  fact,  and  of  which  there  was  no 
evidence  at  the  trial,  the  court  held  that  the  proof  of  knowledge 
was  not  necessary — that  the  liability  of  the  defendant  was  the 
same  whether  he  had  knowledge  of  the  fact  that  the  goods  were 
unfit  for  sale  or  not.  ^  Where  the  complaint  is  founded  upon  a 
deed  or  other  specialty,  every  part  stated  in  the  comj)laint  as  de- 
scriptive of  the  deed  or  other  specialty  should  be  exactly  proved, 
whether  the  part  set  out  in  the  complaint  was  necessary  to  be 
stated  or  not.  In  declaring  upon  a  deed,  it  is  not  necessary  to 
use  the  deed,  but  it  will  be  sufficient  to  state  the  substance  and 
legal  effect  of  it,^  In  determining  whether  a  deed  is  stated  ac- 
cording to  its  legal  efl^cct,  it  will  not  be  necessary  to  show  a  strict 
identity  ;  hence  it  is  that  an  artificial  and  legal  identity  as  contra- 
distinguished from  a  natural  identity  must  be  resorted  to  as  the 

^  Lord  Ellenborough,  Chief- Justice,  said:  "The  distinction  between  imma- 
tei'ial  and  irrelevant  averments  was  well  taken  in  Bristow  v.  Wright.  That  was 
an  action  on  the  case  against  a  sheriff  for  taking  the  tenant's  goods  in  execu- 
tion without  satisfying  the  landlord  for  a  year's  rent,  and  the  plaintiff  averred 
that  the  rent  was  reserved  quarterly,  whereas  it  turned  out  to  be  reserved  yearly. 
There,  if  the  whole  averment  as  to  the  reservation  of  the  rent  had  been  struck 
out,  the  plaintiff  could  not  have  maintained  his  action,  because  some  rent  must 
necessarily  have  been  averred  to  be  due,  and  though  it  was  unnecessary  to  have 
stated  it  to  be  reserved  quarterly,  yet  the  defendant  was  entitled  to  avail  himself 
of  the  defect  of  proof  in  that  particular.  But  here,  if  the  whole  averment  re- 
specting the  defendant's  knowledge  of  the  unfitness  of  the  wine  for  exportation 
were  struck  out,  the  declaration  would  still  be  sufficient  to  entitle  the  plaintiff  to 
recover  upon  the  breach  of  the  warranty  proved.  For  if  one  man  lull  another 
into  security  as  to  the  goodness  of  a  commodity  by  giving  him  a  warranty  of  it, 
it  is  the  same  thing  whether  or  not  the  seller  knew  it  at  the  time  to  be  unfit  for 
gale ;  the  warranty  is  the  thing  which  deceives  the  buyer  who  relies  on  it,  and  is 
thereby  put  off  his  guard.  Then,  if  the  warranty  be  the  material  averment,  it 
is  sufficient  to  prove  that  broken  to  establish  the  deceit."  Williamson  v.  Allison, 
2  East.  450,  451. 

^  Pepin  v.  Solo7nan,  5  Term,  496. 

3  In  setting  forth  the  material  parts  of  a  deed  or  other  written  instruments, 
it  is  not  necessary  to  do  it  in  letters  and  words.  It  will  be  sufficient  to  state  the 
substance  and  legal  effect.  Whatever  is  alleged  should  be  truly  alleged.  A  con- 
tract substantially  different  in  description  or  effect  would  not  support  the  aver- 
ment of  the  declaration.     Ferguson  v.  Harwood,  2  Curt.  598. 


256  ECCLESIASTICAL  LAW. 


proper  test  of  variance  ;  that  is,  it  is  sufficient  if  the  proof  cor- 
respond with  the  allegations  in  respect  to  those  facts  and  cir- 
cumstances Avhich  are  in  point  of  law  essential  to  the  charge 
or  claim.  ^ 

AYhere  a  record  is  declared  on  the  term  of  the  court  at  which 
the  judgment  was  rendered,  and  the  names  of  the  parties,  also 
the  amount  of  the  judgments,  are  held  to  be  descriptive,  and  must 
he  proved  strictly  as  alleged,  thus  a  variance  of  one-half  of  a 
cent  between  the  amount  named  in  record  and  the  amount  alleged 
in  the  complaint  has  been  held  to  be  fatal  and  to  constitute  a 
variance  ;  but  it  is  sufficient,  as  to  the  other  facts,  to  make  sub- 
stantial proofs,  unless  they  have  been  so  declared  on  as  to  become 
descriptive  of  the  record.  Thus,  in  an  action  for  malicious  pro- 
secution, the  day  of  the  plaintiff's  acquittal  is  not  material,  unless 
it  is  alleged  in  the  complaint  that  the  day  of  the  acquittal  appears 
so  of  record,  and  then  it  becomes  descriptive. 

But  since  the  passage  by  the  British  Parliament  of  an  act 
known  as  Lord  Tenterden's  Act,  in  regard  to  variance  be- 
tween matters  in  writing  and  in  print  produced  in  evidence  and 
the  recitals  thereof  upon  the  record,  the  effect  which  was  for- 
merly given  to  a  variance  between  the  allegations  and  the  proofs 
may  be  avoided  by  amendment.  The  same  liberal  doctrine  of 
amendment  has  now  been  adopted  in  almost  every  State  of  the 
Union,  but  this  rule  in  regard  to  amendments  has  not  yet  been 
applied,  either  in  England  or  America,  to  criminal  proceedings, 
but  has  been  exclusively  confined  to  civil  procedure.  But  Ave  can 
see  no  reason  why  it  might  not,  Avith  equal  propriety,  be  alloAved 
in  criminal  as  Avell  as  civil  practice. 

Whether  the  doctrine  of  amendments  as  recognized  in  our 
civil  tribunals  should  be  api)licd  to  Church  trials  and  other  ec- 
clesiastical investigations  remains  yet  an  open  question.  If  such 
investigations  are  in  the  nature  of  a  civil  proceeding,  then,  by 
analogy  to  proceedings  in  our  courts  of  justice,  we  can  perceive 
no  reason  why  amendments  should  not  be  allowed,  and  thereby 
avoid  the  reproach  so  justly  visited  upon  the  courts  before  the 
statutes  of  jeofails  were  enacted. 

'  1  Stark.  Ev.  131  ;    Van  lienseleer  v.  Gallop^  5  Denio,  458;  1  Phillips  Ev 
205:    1  Greciil.  Ev.  H(;3. 


RELEVANCY  OF  EVIDENCE.  257 


CHAPTER  XVIII. 

RELEVANCY    OF    EVIDENCE. 

The  question  of  the  admissibility  of  the  evidence  offered  in 
any  case  is  one  for  the  decision  of  the  court  or  otlier  presiding 
officer.  It  is  the  province  of  tlie  court  or  presiding  officer,  as 
Ave  liave  previously  shown,  to  determine  all  questions  arising  on 
the  admissibility  of  evidence,  even  if  the  decision  involves  the 
finding  upon  questions  of  fact  ;  for  the  rule  is,  that  such  prelim- 
inary questions  of  fact  are  to  be  tried  by  the  presiding  officer 
in  the  first  instance,  though  in  his  discretion  hs  may  take  the 
opinion  of  the  jury  or  committee  upon  them,  but  Avhere  the  ques- 
tion consists  of  both  law  and  facts  so  blended  as  not  to  be  suscep- 
tible of  separate  decisions,  the  judge  or  presiding  officer  may  submit 
the  same  to  the  jury  under  instructions  of  law  arising  upon  the 
case  ;  or  in  a  Church  investigation  the  whole  question,  including 
both  law  and  facts,  may  be  left  to  the  committee.  If  the  genuine- 
ness of  a  deed  or  other  written  instrument  is  a  fact  in  question, 
the  preliminary  inquiry  of  its  execution  should  be  made  before  the 
court,  and  the  court  should  determine  whether  the  evidence  is 
sufficient  to  justify  the  court  in  sending  it  to  the  jury.  The  evi- 
dence offered  in  the  first  instances  is  not  to  the  jury  but  to  the 
court,  and  the  decision  of  the  court  does  not  determine  the 
genuineness  of  the  instrument,  but  the  court  only  decides  the  ques- 
tion as  to  whether  there  is,  prima  facie,  any  reason  at  all  for  send- 
ing it  to  the  jury;  and  the  genuineness  of  the  deed  or  other  writ- 
ten instrument  where  that  fact  is  in  issue,  must  regularly  be 
proved  to  the  jury,  the  same  as  though  no  determination  thereof 
had  been  made  by  the  court.  This  rule  obtains  as  well  in  those 
States  where  by  statute  the  jury  are  made  both  the  judges  of  the 
law  and  the  fact  as  in  those  States  where  the  court  is  the  judge 
of  the  law  and  the  jury  of  the  facts.  ^ 

^  By  the  last  clause  of  section  6  of  article  8  of  the  Constitution  of  this  State, 
it  is  declared  that  "  in  all  indictments  for  libels  the  jury  shall  have  the  rijfht  to 
determine  the  law  and  the  facts  under  the  direction  of  the  court,  as  in  other 
cases."  It  would  seem,  from  this,  that  the  framers  of  our  bills  of  rights  did  not 
imagine  that  juries  were  rightfully  judges  of  law  and  fact  in  criminal  cases, 


25S  ECCLESIASTICAL  LAW. 

In  dctcrnnning  upon  the  admissibility  of  evidence  the  rule  is, 
that  if  the  facts  offered  in  evidence  constitute  a  link  in  the  chain, 
although  it  does  not  bear  directly  upon  the  issue,  yet  it  is  admis- 
sible, although,  standing  alone,  it  rqiglit  not  be  sufficient  to  justify 
a  final  judgment  upon  it;  nor  is  it  necessary  that  the  relevancy 
of  the  evidence  should  appear  at  the  time  when  it  is  offered,  pro- 
vided that  counsel  will  undertake  subsequently  to  connect  it  Avith 
tbe  issue.  But  this  matter  is  one  tliat  is  purely  in  the  discretion 
of  the  court.  Wliere  evidence  is  offered  under  the  assumption 
of  counsel  that  lie  will  connect  it  so  as  to  render  it  relevant,  and 
he  fails  so  to  do,  the  court,  upon  application,  will  direct  the  jury 
to  disregard  such  evidence  altogether. 

Sometimes  it  becomes  necessary  to  depart  from  the  strict  rule 
of  the  law  in  this  respect  and  to  allow  evidence  to  be  introduced 
of  apparently  collateral  facts.  Thus,  where  a  witness  of  the 
plaintiff  denied  the  existence  of  a  material  fact,  and  testified  that 
persons  connected  with  the  plaintiff  had  offered  him  money  to 
assert  its  existence,  the  plaintiff  was  allowed  to  prove  the  fact  by 
other  witnesses  and  to  disprove  the  subornation  on  the  ground 
that  this  hitter  fact  had  become  material,  inasmuch  as  its  truth  or 
falsity  might  fairly  influence  or  prejudice  the  plaintiff's  case. ^ 

In  trials  for  conspiracies  and  other  offenses  involving  a  great 
multitude  of  circumstances,  very  great  latitude  is  sometimes 
necessarily  taken,  though  it  should  be  avoided  if  practicable. 
Thus,  on  a  trial  of  itidictment  against  five  persons  for  a  con- 
spiracy to  obtain  merchandise,  letters  were  offered  from  one  or 
two   respecting  the  obtaining  of   merchandise.      Generally  they 


independenlly  of  llic  dirocfions  of  courts.  Their  riglit  to  judge  of  the  law  is  a 
riglit  to  be  exercised  only  under  the  direction  of  the  court,  and  if  they  go  aside 
from  that  direction  and  determine  the  law  incorrectly,  they  depart  from  their 
duty  and  commit  a  public  wrong,  and  this  in  criminal  as  well  as  in  civil  cases. 
Montgomery  v.  Stale  of  Ohio,  11  Ohio,  A'21. 

The  jury  are  the  judges  of  the  facts  bolh  in  civil  and  criminal  cases,  bu 
they  are  not,  in  either,  the  judges  of  the  law.  They  are  bound  to  find  the  law 
as  it  is  propounded  to  them  by  the  court.  They  may,  indeed,  find  a  general  ver- 
dict including  both  the  law  and  the  facts,  but,  if  in  such  verdict  they  find  the  law 
contrary  to  the  instructions  of  the  court,  they  thereby  viohite  their  oath.  'fow7i- 
send  V.  The  State,  2  Bhickf  151  ;  The  Treasurer  of  Perri/  Cmtnty  v.  William  F. 
Moelcr  and  Thomas  Hood,  11  Ohio,  128;  Panton  v.  Williams,  2  Ad.  &  El.  169. 
'  Melhiersh  v.  Collier,  15  Ad.  &  El.  878. 


RELEVANCY  OF  EVIDENCE.  259 

contained  no  direct  proof  of  a  conspiracy,  nor  was  any  general 
conspiracy  established ;  yet  these  letters  Avere  received  on  the 
ground  that  they  might  become  material  in  the  course  of  the 
cause.  If  their  materiality  should  not  appear,  the  court  should 
direct  the  jury  to  disregard  them.  So  an  order  inclosed  in  a  let- 
ter was  received  on  the  same  principle.  It  is  scarcely  necessary 
to  observe,  that  though  a  circumstance  be  proper  as  tending  to 
show  a  particular  fact,  it  is  inadmissible  unless  the  fact  itself  be 
relevant  to  the  question  at  issue.  Thus,  where  the  sheriff  levied 
upon  money  for  "  F,"  on  execution,  and  then  levied  on  the  same 
money  in  his  own  hands  on  a  fieri  facias  against  F,  and  being 
sued  by  F,  the  sheriff  offered  oral  evidence  to  show  that  F  was 
insolvent  and  had  taken  the  insolvent  debtor's  oath ;  but  it  was 
held  that  this  evidence,  offered  with  a  view  of  proving  the  insolv- 
ency of  F,  was  irrelevent ;  that  while  it  might  be  true  that  the  evi- 
dence offered  might  entitle  other  persons  than  the  plaintiff  to  the 
money,  it  could  not  prevent  a  recovery  in  the  plaintiff's  name. 
It  was  therefore  held  inadmissible,  not  because  the  facts  offered 
might  not  be  material  to  establish  a  right  in  third  persons,  but 
because  that  right  existing  and  being  shown,  it  could  not,  upon 
any  thing  appearing,  affect  the  plaintiff' 's  right  to  recover.^ 

^  It  is  not  error  to  reject  legal  evidence  of  an  irrelevant  fact.  The  defendant 
offered  to  show  that  the  trustees  of  Philip  R.  Fendall  were  not  entitled  to  certain 
money  levied  b}-  virtue  of  the  execution  mentioned  in  the  notice,  which  testimony 
was  rejected  by  the  Court;  and  to  this  opinion  a  bill  of  exceptions  was  taken, 
and  on  such  bill  of  exceptions  the  case  was  brought  to  the  Supreme  Court  of  the 
United  States,  where  the  Chief-Justice  delivered  the  following  opinion,  namely: 
"In  considering  the  second  error  assigned,  the  Court  was  satisfied  that  the  pro- 
ceedings before  magistrates  in  cases  of  insolvent  debtors  are  entirely  matters  in 
pais,  and  are  therefore  to  be  proved  by  parol  and  other  testimony.  The  evidence 
offered  was  certainly  legal  evidence  to  establish  tlie  fact  for  which  it  was  ad- 
duced. The  Court,  however,  is  not  satisfied  of  its  sufficiency;  but  without  deter- 
mining that  question,  and  without  determining  whether,  in  a  case  where  there  .3 
no  jury,  a  judgment  ought,  for  the  rejection  of  testimony  which  was  admissible 
in  law,  to  be  reversed  in  any  state  of  things,  or  the  cause  should  be  considered 
as  if  the  testimony  had  been  received,  it  is  the  opinion  of  all  the  judges  that  the 
party  is  bound  to  show  the  relevancy  of  the  fact  Intended  to  be  established  to 
the  case  before  the  Court. 

"In  the  present  cause  the  fact  to  be  established  was  the  insolvency  of  Fen- 
dall, which  insolvency  is  not  shown  to  have  been  material  in  the  case,  since 
nothing  appears  in  the  record  to  induce  an  opinion  that  the  proceeding  could 
have  been  in  any  other  name  than  his. 


260  ECCLESIASTICAL  LAW. 


The  pluintiff  may  sometimes  by  liis  own  acts  exclude  an  in- 
quiry, wliicli  would  otherwise  be  relevant,  but  he  can  not  go  to  the 
jury  on  two  inconsistent  propositions.  Thus,  where  the  defendant 
gave  evidence  to  impeach  a  note  for  want  of  consideration,  and 
the  plaintiff,  in  order  to  prove  a  pecuniary  consideration,  intro- 
duced certain  evidence  which  the  defendant  answered  by  proof 
of  the  plaintiff's  declarations  that  the  consideration  was  a  special 
.•igreement,  it  was  held  that  the  plaintiff  was  precluded  from 
insistina"  on  both,  but  must  be  confined  to  a  vindication  of  one 
of  his  propositions.  He  has,  however,  the  right  to  elect  the  one 
he  wishes  to  vindicate.^  And  where  the  plaintiff  proved  the 
distinct  confessions  of  the  defendant  made  at  different  times,  one 
of  which  did  and  the  other  did  not  support  the  declaration,  it  was 

"Although,  then,  the  testimony  i-ejected  was  proper  and  legal  evidence  to- 
wards showing  and  establishing  the  fact,  yet  the  Court  committed  no  error  in 
rejecting  that  testimony  for  which  their  judgment  ought  to  be  reversed,  because 
the  fact  does  not  appear  to  have  been  relevant  to  the  cause  under  consideration." 
Turner  v.  Fendali,  1st  Cranch,  132. 

^  But  the  judge  also  charged  the  jury  that  this  consideration  was  supported 
bv  the  evidence  to  be  drawn  from  the  confessions  of  the  plaintiff  as  proved  on 
the  part  of  the  defendant,  thus  making  the  plaintiff's  own  confessions  and  dec- 
larations evidence  to  support  a  consideration  totally  different  from  that  which 
he  had  endeavored  during  the  whole  course  of  the  trial  to  prove  was  the  true 
consideration,  and  which  he  had  produced  witnesses  to  support  by  their  oaths. 
If  the  consideration  for  this  note  was  not  entirely  pecuniary,  then  Benjamin 
Shattuck,  the  principal  witness  for  the  ])laintiff,  was  guilty  of  the  most  gross  and 
deliberate  perjury,  and  must  have  been  suborned  by  the  plaintiff  himself  Can 
a  party  be  permitted  to  go  to  a  jury  upon  two  distinct  and  entirely  contradictory 
and  irreconcilable  grounds?  Suppose  that  the  plaintiff  had  first  proved  that  the 
note  had  been  given  on  a  pecuniary  consideration,  but  apprehensive  by  the  evi- 
dence given  by  the  opposite  party,  that  his  witnesses  would  not  be  credited,  had 
then  called  another  lot  of  witnesses,  who  testified  that  it  was  given  upon  the  con- 
tract or  agreement  which  has  been  supposed  in  the  first  place,  would  he  have 
been  permitted  to  do  so?  And  if  he  had  been,  should  the  jury  have  been  in- 
structed that  either  of  the  considerations  proved  would  support  the  note?  ought 
tlipy  not  rather  to  have  been  charged  that  the  witnesses  effectually  destroyed 
each  other,  and  that  neither  was  entitled  to  credit?  That  the  plaintiff  by  tak- 
ing two  contradictory  grounds  had  deprived  himself  of  the  benefit  of  both?  Can 
the  declarations  of  the  jdaiutiff  himself,  when  jjroved  by  the  defendant,  be  more 
avarlalile  to  the  plaintiff,  than  the  same  facts  would  be  if  the  ])laintiff  himself 
had  established  them  by  competent  evidence  ?  If  the  plaintiff  had  acquiesced  in 
the  evidence  given  by  the  defendant  as  to  the  consideration  of  the  note,  and  had 
ro[)osed  himself  upon  it  as  a  legal  consideration,  there  would  have  been  no  objec- 
tion  to  it.      lint  instead  of  that,  he  denies  that  that  was  the  consideration,  and 


RELEVANCY  OF  EVIDENCE.  201 

held  tliat  the  decLirations  ])ein<'-  inconsistent,  the  phuntifF  couhl 
not  relj  on  them  botli ;  but  that  he  miglit  adoj)t  the  one  that  sup- 
ported the  decL-iration  and  reject  the  other.  ^  It  follows  from 
what  we  have  already  said  that  evidence  may  be  relevant  and 
support  one  count  of  a  declaration,  or  one  specification  in  a  bill 
of  charges,  and  be  irrelevant  and  fail  to  support  another,  yet, 
Avhere  the  evidence  is  admissible  under  any  circumstances,  and 
in  support  of  either  count  in  a  declaration,  or  either  specification 
in  a  bill  of  charges,  it  is  receivable.  It  should  also  be  remarked 
in  this  connection  that  the  question  is  not  whether  the  evidence 
offered  be  the  most  convincing,  but  whether  it  tends  at  all  to  illus- 
trate and  support  the  issue.  To  make  testimony  relevant,  it  is 
not  necessary  that  it  should  be  essential,  and  that  a  recovery  or 
a  conviction  could  not  be  had  or  obtained  without  it.  It  is  suffi- 
cient if  it  be  cumulative  and  supererogatory.  Thus,  in  proving 
a  sheriff's  sale  of  land,  on  execution,  the  conditions  of  the  sale 
need  not  be  shown ;  yet,  if  they  are  shoAvn,  though  objected  to, 
this  is  not  an  error,  for  the  conditions  are  a  part  of  the  res  gestce. 
Testimony  may  be  admissible  for  one  purpose,  though  not  for 

produces  a  multitude  of  witnesses  to  establish  another  and  entirely  different  one. 
He  maintains,  and  he  labors  by  his  evidence  to  prove,  that  the  declarations  which 
he  is  shown  to  have  made  as  to  the  considerations  were  false ;  and  yet  the  jury 
are  instructed  that,  if  they  believe  those  declarations,  the  plaintiff  is  entitled 
to  recover. 

Under  these  circumstances,  the  case  appears  to  me  to  bear  a  strong  analogy 
in  principle  to  that  class  of  cases  in  which  it  has  been  held  that  where  the  con- 
sideration is  set  forth  in  a  written  contract,  evidence  to  show  that  a  greater  or 
different  consideration  was  intended,  is  inadmissible.  1  John.  189;  3  John.  506; 
7  John.  341 ;  2  W.  Bl.  1249.  That  rule,  it  is  true,  is  founded  on  the  established 
doctrine  that  a  written  contract  can  not  be  contradicted  or  varied  by  parol.  But 
so  far  as  that  doctrine  has  any  foundation  in  moral  principle,  independent  of 
considerations  of  public  policy,  it  is  this:  that  a  party  shall  be  concluded  by  his 
own  solemn  declarations,  and  shall  not  be  permitted  to  prove  that  what  he  has 
once  declared  in  writing  was  the  sole  consideration  was  not  so.  With  how  much 
more  force  does  the  principle  apply  to  a  case  where  that  declaration  is  made  by 
the  oaths  of  moral  and  responsible  beings,  in  the  presence  of  God  and  man, 
swearing  by  the  procurement,  and  at  the  instigation  of  the  party  himself,  and 
where  the  contradictory  evidence  consists  of  his  own  declarations  and  confes- 
sions? To  permit  those  declarations  under  such  circumstances  to  be  used  in 
this  way,  appears  to  me  to  be  subversive  of  all  morals. 

In  this  respect,  therefore,  we  think  the  judge  erred ;  and  that  a  new  trial 
must  be  granted.      Winchell  v.  Latham,  6  Cowen,  688,  689,  690. 
^  Hale  V.  Andriis^  6  Cowen,  225. 

18 


262  ECCLESIASTICAL  LAW. 

another;  and  on  the  same  principle  testimony  may  be  relevant 
when  offered  for  one  purpose,  and  irrelevant  when  offered  for 
another.  Thus,  acts  of  misfeasance,  or  malfeasance,  may  be 
given  in  evidence  if  they  are  immediately  connected  with  the 
plaintiff's  cause  of  action,  not  as  a  set  off,  but  to  defeat  partially 
or  wholly  the  plaintiff's  claim  by  impeaching  it.  ^ 

So  in  an  action  for  the  price  of  millstones,  that  the  plaintiff 
warranted  to  be  good,  it  was  held  that  it  was  competent  for  the 
defendant  to  show  a  breach  of  the  warranty.  ^ 


CHAPTER   XIX. 

COLLATERAL   FACTS. 

Evidence  of  collateral  facts,  which  are  incapable  of  afford- 
ing a  reasonable  presumption  as  to  the  principal  fact,  tends  to  draw 
the  mind  away  from  the  point  in  issue,  and  to  mislead  and  extend 
the  investigation;  and,  therefore,  the  same  should  be  excluded. 
This  rule  has  been  adhered  to  even  in  the  cross-examination  of 
witnesses.  A  party  will  not  be  permitted  to  ask  the  witness  a 
question  in  regard  to  matters  not  relevant  to  the  issue,  for  the  pur- 
pose of  laying  the  foundation  for  his  contradiction.  The  rule  upon 
this  point  is  well  settled;  namely,  a  Avitness  can  not  be  examined 
in  chief  or  cross-examined  upon  an  immaterial  fact  with  a  view 
to  contradict  him.  If  an  immaterial  fact  is  stated  by  a  witness 
of  his  own  accord  or  as  introductory  merely  to  material  testi- 
mony, or  if  the  party  who  calls  a  witness  is  permitted  without 
objection  to  question  him  as  to  immaterial  facts,  the  irrelevant 
testimony  must  be  regarded  in  the  same  manner  as  though  it  had 
come  out  on  cross-examination  ;  and  the  other  party  can  not  call 
witnesses  to  contradict  it.^ 


>  Gngle  v.  Jacob;/,  5  Serjr.  k  Rawle,  117-122. 

^  S(ei;/Ie/nnn  v.  Jeffries,  1  Sorg.  k  Rawle,  4T7. 

'  The  question  is,  wlietlier  the  stntemeiit  of  an  immaterial  fact  can  be  contra- 
dicted if  it  comes  out  on  tlie  examination  of  a  witness  in  chief.  Now  neither 
party  can  be  allowed  to  show  the  internal  condition  of  this  institution,  by  way 
of  excuse,  justification,  or  apology  for  the  attack  made  upon  it;  so  on  an  indict- 
ment for  settinf'  fire  to  a  house  of  ill  fame,  the  bad  character  of  the  house  is  no 


COLLATERAL  FACTS.  263 


Where  tlie  knowledge  or  intent  of  a  party  becomes  a  material 
inquiry  in  the  case,  evidence  has  been  received  of  facts  which 
ha})pened  before  and  after  the  principal  transaction  and  which 
had  no  direct  connection  with  it.  Thus,  in  an  indictment  for 
knowingly  altering  or  forging  a  promissory  note,  bank  bill,  or 
bill  of  exchange,  proof  that  the  defendant  had  altered,  counter- 
feited, or  forged  a  promissory  note  prior  to,  or  even  subsequent 
to,  those  set  forth  in  the  indictment,  are  admitted  as  tending  to 
pi'ove  the  guilty  knowledge  or  intent.  In  actions  of  slander  or 
libel,  evidence  of  other  slanderous  words  spoken,  or  other  de- 
famatory articles  written  by  the  defendant  at  different  times,  is 
admissible  in  evidence  as  tending  to  show  the  spirit  and  intention 
of   the    party   in    speaking    the    words    or  publishing   the   libel 

ground  of  defense.  Then  the  only  object  of  the  prisoner  must  be  to  affect  the 
credibiHtv  of  the  witnesses  by  contradicting  them.  But  it  seems  to  us  that  if  an 
immaterial  fact  is  stated  by  a  witness  of  his  own  accord,  or  as  introductory 
merely  to  material  testimony,  or  if  the  parly  who  calls  a  witness  is  permitted 
without  objection  to  question  him  as  to  material  facts,  the  irrelevant  testimony 
must  be  regarded  in  the  same  manner  as  if  it  had  come  out  on  cross-examina- 
tion, and  the  other  party  can  not  call  witnesses  to  contradict  it.  Now  here  the 
evidence  as  to  the  insanity  of  the  nun  was  immaterial;  it  was  not  objected  to  by 
the  prisoner's  counsel,  the  Court  were  not  called  to  pass  upon  its  admissibility, 
and  we  think  that  evidence  to  contradict  it  is  immaterial,  and  therefore  can  not 
be  received.      Commomcealth  v.  BuzzeJl.  IG  Pick.  158. 

The  Court  were  all  decidedly  of  opinion  that  it  was  not  competent  to  counsel 
on  cross-examination  to  question  the  witness  concerning  a  fact  wholly  irrelevant 
to  the  matter  in  issue  if  answered  affirmatively,  for  the  purpose  of  discrediting  him 
if  he  answered  in  the  negative,  by  calling  other  witnesses  to  disprove  what  he 
said.  That  in  this  case,  whatever  contracts  the  witness  might  have  entered  into 
with  other  persons  for  other  loans,  they  could  not  be  evidence  of  the  contract 
made  with  the  defendant,  unless  the  witness  had  first  said  that  he  had  made  the 
same  contract  with  the  defendant  as  he  had  made  with  those  persons,  which  he 
had  not  said.  They  observed  that  the  rule  had  been  laid  down  again  and  again, 
that  upon  cross-examination  to  try  the  credit  of  a  witness,  only  general  questions 
could  be  put,  and  he  could  not  be  asked  as  to  any  collateral  or  independent  fact 
merely  with  a  view  to  contradict  him  afterwards  by  calling  another  witness.  The 
danger  of  such  a  practice  would  be  obvious,  besides  the  inconvenience  of  trying 
as  many  collateral  issues  as  one  of  the  party  chose  to  introduce  and  which  the 
other  could  not  be  prepared  to  meet.  Lord  Ellenborough  added  that  he  had 
ruled  this  point  again  and  again  at  the  Sittings,  till  he  was  quite  tired  of  the 
agitation  of  the  question,  and  therefore  he  wished  that  a  bill  of  exceptions  should 
be  tendered  by  any  party  who  was  dissatisfied  with  his  judgment,  that  the  ques- 
tion might  be  finally  put  to  rest.     Spenceley  Quitam  v.  DeWillatt,  7  East,  110 

Harris  v.  Tippet,  2  Campb.  637 ;    Odairne  v.  Winkley,  2  Gallison,  53. 


2G4  ECCLESIASTICAL  LAW. 


charged.  And  it  is  wholly  immaterial  in  this  view  whether  the 
other  words  spoken  or  libel  published  be  in  themselves  action- 
able or  not.^ 

Whenever  the  intent  of  the  party  forms  part  of  the  matter  in 
issue,  evidence  may  be  given  of  other  acts  not  in  issue,  provided 

^  It  has  been  already  observed,  that  where  words  have  been  uttered,  or  a  libel 
lias  been  published  of  the  plaintiff,  by  which  actual  or  presumptive  damage  has 
been  occasioned,  the  malice  of  the  defendant  is  a  mere  inference  of  law  from 
the  very  act,  for  the  defendant  must  be  presumed  to  have  intended  that  which  is 
the  natural  consequence  of  his  act.  Prosser  v.  Bromage,  4  B.  &  C.  247.  In 
such  instances,  therefore,  it  is  unnecessary  to  give  evidence  of  malice  in  fact  or 
actual  malice,  unless  it  may  be  by  the  way  of  aggravating  the  damages.  In 
other  cases,  the  occasion  and  circumstances  of  the  speaking  and  publishing  re- 
pel the  action  either  peremptorily  and  absolutely,  or  unless  express  malice 
exist;  and  in  this  latter  class  of  cases,  where  actual  malice  is  essential  to  the 
action,  it  lies  on  the  plaintiff  to  prove  the  fact.  Where  the  burthen  of  proving 
express  malice  is  thus  thrown  upon  the  plaintiff,  he  may  give  in  evidence  any 
expressions  of  the  defendant,  whether  they  be  oral  or  written,  which  indicate  spite 
and  ill  will,  for  the  purpose  of  showing  the  temper  and  disposition  with  which  he 
made  the  publication  complained  of 

It  has,  however,  been  held,  that  other  words  or  libels  are  not  admissible  evi- 
dence to  show  the  quo  atiimo,  unless  they  relate  to  the  same  subject.  An  action 
was  brought  for  a  libel  published  in  a  periodical  work  called  the  Saii7nst  or 
Monthl;/  Meteor,  which  stated  {inter  alia)  that  the  plaintiff  being  prosecuted  by 
the  Attornej'-general,  had  fled  the  country  that  he  might  save  himself  from  the 
pillory.  To  prove  the  malicious  motive  of  the  defendant,  the  plaintiff's  counsel 
proposed  to  read  extracts  from  a  subsequent  number  of  the  Satirist,  but  Sir  J. 
Mansfield,  C.  J.,  rejected  them  all  except  one  which  had  immediate  reference  to 
the  former  libel.  Finnerty  v.  Tipper,  2  Camp.  C.  72.  But  it  is  to  be  remarked 
that  in  this  case  there  was  no  doubt  as  to  the  animus ;  the  publication  was  clearly 
libelous  in  itself,  and  the  occasion  of  pul)lishing  did  not  render  proof  of  malice 
in  fact  necessary.  As  nothing  turned  u])on  tlio  defendant's  real  intention,  the 
evidence  was  inadmissible;  for  it  is  perfectly  clear  that  subsequent  libels  can  not 
be  received  in  evidence  with  a  view  to  enhance  the  damages,  for  they  are  sub- 
stantive and  independent  causes  of  action.  And  in  the  subsequent  case  of 
Stuart  V.  Lovell  (2  Starkie's  C.  9.^),  where  the  publication  declared  on  was 
clearly  libelous,  Lord  Ellenborough,  C.  J.,  rejected  evidence  offered  of  the  pub- 
lication of  subsequent  libels,  observing  that  such  evidence  would  certainly  be 
admissible  to  show  the  intention  of  the  defendant  were  it  at  all  equivocal,  but 
that  they  were  not  admissible  for  the  purpose  of  enhancing  the  damages.  A 
ease,  therefore,  of  equivocal  intention,  as  where  the  question  depends  on  the 
existence  of  malice  in  fact,  differs  widely  in  this  respect  from  one  which  admits 
of  no  doubt  on  the  subject.  Where  such  a  doubt  exists,  and  whore  the  material 
question  in  the  cause  is  whether  the  dofondant  was  justified  by  the  occasion  or 
acted  from  express  malice,  it  seems,  in  principle,  that  any  circumstances  are  ad- 
missible whicii  can  elucidate  the  transaction  and  etiable  the  jiiiy  to  correctly  con- 


COLLATERAL  FACTS.  265 


they  tend  to  establish  tlie  intent  of  the  party  in  doing  the  act  in 
question.^  And  this  rests  upon  the  obvious  ground,  that  often  it 
is  the  only  mode  of  showing  the  existence  in  the  mind  of  a  deliber- 
ate design  to  do  a  certain  act.  The  design  in  him  once  proved, 
may   properly  lead   to  the   conclusion  that   it    is  continued   and 

elude  whether  the  defenchuit  acted  f'airl}'  and  honestly  according  to  the  occasior^ 
or  mala  Jide  and  vindictively,  for  the  purpose  of  causing  evil  consequences. 

In  an  action  for  a  malicious  prosecution  of  an  indictment  for  perjury,  evi- 
dence was  admitted  of  an  advertisement  published  by  the  dei'endant  pending  the 
prosecution,  although  an  information  had  been  granted  for  publishing  that  adver- 
tisement.     Chambers  v.  Robinson^  Str.  69L 

In  an  action  imputing  perjury,  the  plaintiff  was  allowed  to  prove  that  sub- 
sequently to  the  speaking  of  the  words  the  defendant  had  preferred  an  indictment 
against  him.  But  in  such  cases  the  jury  are  not  to  consider  the  effect  of  such 
evidence  in  measuring  the  amount  of  damages,  but  merely  as  a  circumstance  to 
prove  malice. 

It  was  once  doubted  whether,  in  admitting  evidence  of  this  nature,  a  dis- 
tinction ought  not  to  be  made  between  words  not  actionable  in  themselves  and 
those  which  are  so.  In  the  case  of  Mead  v.  Daubigity,  Peake's  C.  125,  Lord 
Kenyon  rejected  evidence  of  words  actionable  in  themselves  and  not  mentioned 
in  the  declaration ;  but  his  lordship  afterwards  changed  his  opinion  and  ad- 
mitted such  evidence  in  a  subsequent  case.     Lee  v.  Jhidson,  Peake's  C.  166. 

In  Russell  v.  Macquister,  1  Camp.  49,  evidence  of  actionable  words  spoken 
after  the  time  of  those  laid  in  the  declaration,  was  objected  to  on  the  ground 
that  if  such  words  were  taken  into  consideration  by  the  jury,  the  defendant 
might  be  made  to  pay  a  double  compensation  for  the  same  injury,  since  another 
action  might  be  brought  for  the  words  last  spoken  and  the  distinction  between 
that  case  and  the  case  of  words  not  actionable.  But  Lord  Ellenborough,  C.  J., 
overruled  the  objection,  observing  that  though  such  a  distinction  had  once  pre- 
vailed, it  was  not  fonnded  in  principle,  and  that,  although  no  evidence  can  be 
given  of  any  special  damage  not  laid  in  the  declaration,  yet,  that  any  words  or 
any  act  of  the  defendant  is  admissible  to  show  the  q%io  animo  he  spoke  the 
words  which  are  the  subject  of  the  action. 

Upon  the  same  priciple,  where  a  libel  was  contained  in  a  political  paper  pub- 
lished weekly  by  the  defendant,  after  proof  that  the  paper  in  question  had  been 
purchased  at  the  defendant's  office,  evidence  was  admitted  of  the  previous  sale 
of  other  papers  with  the  same  title  at  the  same  office;  and  the  reason  of  admit- 
ting it  was  to  show  that  the  papers  which  purported  to  be  weekly  publications  of 
public  transactions  were  sold  deliberately  and  vended  in  the  regular  course  of 
circulation ;  that  the  paper  containing  the  libel  was  not  published  by  mistake, 
but  vended  publicly,  deliberately,  and  in  regular  transmission  for  public  perusal. 

In  an  action  where  any  words  or  other  libels  not  specified  in  the  declaration 
are  offered  in  evidence,  the  defendant  is  at   liberty  to  prove  the  truth  of  the 
charges  or  imputations  which  they  contain,  for  he  had  no  opportunity  of  plead- 
ing the  truth  in  justification.     Starkie  on  Slander,  53,  54,  etc. 
^  Roscoe's  Cr.  Ev.  3  Amer.  Ed.  99. 


266  ECCLESIASTICAL  LAW. 


carried  into  effect.^  Where  intent  or  motive  is  the  subject  of 
inquiry,  it  is  impracticable  to  Lay  down  any  rule  so  as  to  confine 
the  evidence  within  any  precise  limits.  ^ 


CHAPTER  XX. 

ADMISSIBILITY   OF   EVIDENCE   OF   GENERAL    CHARACTER. 

Under  this  head  will  be  considered  the  admissibility  of  evi- 
dence of  general  character. 

The  English  cases  are  opposed  to  the  admission  of  proof  of 
general  character  in  civil  cases  unless  the  general  character  is 
involved  in  the  issue  by  the  very  nature  of  the  action.  Thus,  in 
an  action  of  slander  for  imputing  a  felony,  and  for  a  malicious 
prosecution  where  the  defendant  justified,  evidence  of  the  plain- 
tiff's good  chai-acter  was  in  this  case  refused;  but  from  the  re- 
port of  the  case  it  does  not  appear  that  the  defendant  had 
attempted  to  support  his  justification  that  he  had  spread  upon 
the  record  by  evidence.  If  such  justification  had  been  attempted 
to  be  supported  by  evidence  on  the  part  of  the  defendant,  no 
reason  is  perceived  why  proof  of  general  character  would  not 
have  been  admissible  on  the  part  of  the  plaintiff  upon  the  same 
ground  that  it  would  have  been  admissible  to  repel  the  charge 
on  the  trial  of  an  indictment.^ 

Where  there  is  a  plea  of  probable  cause,  followed  by  evidence 
in  its  support,  on  answer  to  an  action  for  a  malicious  prosecution, 
there  the  character  of  the  plaintiff  is  directly  in  issue,  and  he 
may,  of  course,  prove  his  general  good  character  in  cases  where 
the  crime  in  question  is  infamous.  It  will  be  perceived  that  gen- 
eral character  iif\ay  be  put  in  issue  in  a  variety  of  ways,  besides 
those  of  the  common  case  of  slander  or  libel,*  where  it  is  to  a 

1  2  Phillips'  Ev.  3  Amor.  Ed.  05. 

*  Roscoe's  Cr.  Ev.  3d  Ainericun  Ed.  9. 

'  Cornwall  v.  Richardson,  Ry.  &  Wood  Nisi  Prius  Case,  305. 

*The  question  is,  was  it  proper  to  give  in  evidence  publications  made  after 
the  libel "T  It  has  not  boon  objected  that  they  were  libelous;  and  the  plaintiff's 
counsel  put  their  right  to  reading  them  on  the  ground  that  they  afTordod  evidence 
of  the  defendant's  malice  in  the  original  publication.  The  nisi  prius  decisions 
on  tliis  point  are  somewhat  contradictory.  All  of  them  agree  that  in  actions  for 
written  or  verbal  slander,  other  and  posterior  publications  or  words,  not  action- 


EVIDENCE  OF  GENERAL  CHARAC'lER.  267 

greatei*  or  less  extent  involved.  Cases  of  criminal  convei-sation, 
seduction,  and  breacli  of  promise  of  marriage  are  familiar  in- 
stances.    So  in  some  cases  of  property  and  in  actions  of  tort, 

able,  ma}'  be  given  in  evidence  to  show  malice.  In  llitstellv.  Maquister,  1  Camp, 
N.  P.  48  in  the  notes,  Lord  Ellenboroiigh  said  that  although  there  had  been  for- 
merly such  a  distinction,  it  was  not  founded  on  any  principle;  that  any  words 
as  well  as  any  act  of  the  defendant  may  be  given  in  evidence  to  show  quo  animo 
he  spoke  the  words,  but  that  the  judge  should  tell  the  jury  to  give  damages  only 
for  the  words  which  were  the  subject  of  the  action. 

In  Mead  and  Daubigny,  Peake's  N.  P.  12(5,  and  Cooh  v.  Field,  3  Esp.  N.  P. 
Cas.  3H,  Lord  Kenyon  refused  to  permit  word.s  actionable,  spoken  aftcrward.s,  to 
be  given  in  evidence.  But  in  Lee  v.  Htison,  Peake,  1()G,  in  an  action  for  a  libel 
the  same  judge  suffered  other  libelous  papers  to  be  given  in  evidence. 

Perhaps  this  is  not  the  occasion  to  lay  down  any  rule  on  the  subject,  it  not 
being  necessary  to  this  case,  nor  do  the  Court  mean  to  do  it.  But  I  should  think 
it  incorrect  to  suffer  distinct  libelous  matter  to  be  given  in  evidence,  for  though 
the  judge  might  instruct  the  jury  not  to  give  damages  for  such  libels,  yet  it 
would  imperceptibly  influence  their  judgments  as  to  the  damages,  and  thus  the 
defendant  might  be  twice  punished  for  the  same  offense. 

On  the  point  of  misdirection,  the  judge's  charge  is  objected  to  in  three  re- 
spect.'f :  I.  In  leaving  a  question  of  law  to  the  jury,  whether  the  y)Iaintiff  had  vio- 
lated his  duty  in  leaving  Washington  and  soliciting  the  office  of  treasurer. 
2.  That  the  innuendoes  give  a  sense  not  warranted  by  the  context  in  this,  that 
the  libel  did  not  amount  to  the  charge  that  the  plaintiff  was  guilty  of  the  crime 
of  receiving  a  quantity  of  counterfeit  money,  with  intent  to  pass  the  same, 
knowing  it  to  be  counterfeit,  and  that  on  this  ground  the  judge  ought  to  have 
charged  the  jury  to  find  for  the  defendant.  '^.  That  the  defendant's  publication 
of  the  plaintiff's  trial  was  substantially  true;  that  its  object  was  to  animadvert  on 
the  legislature,  and,  therefore,  it  ought  to  have  been  submitted  to  the  jury  whether 
there  was  malice  in  the  defendant  towards  the  plaintiff,  as  evidenced  by  the  libel. 

It  must  be  a  matter  of  fact  whether  the  plaintiff's  leaving  Washington 'and 
coming  to  Albany,  for  the  office  of  treasurer  (if  he  did  so)  was  or  was  not  a  vio. 
lation  of  duty;  and  this  would  depend  upon  the  circumstance  whether  he  had 
leave  of  Congress  to  absent  himself  or  not.  Unexplained,  it  is  to  be  presumed 
that  he  had  such  permission.  It  can  not  be  pretended  that  a  member  of  Con- 
gress is  so  far  bound  to  yield  his  personal  attendance,  that  absence  with  leave 
of  the  body  to  which  he  belongs  is  a  violation  of  duty.  Congress  have  the  right 
to  enforce  the  attendance  of  members,  and  they  have  a  right  to  dispense  with 
such  attendance;  Congress  are  the  judges,  and  no  man  is  obnoxious  to  the 
charge  of  abandoning  his  duty  there,  who  leaves  it  by  permission ;  but  this  ques- 
tion is  at  rest  by  the  verdict  of  the  jury. 

An  innuendo,  as  has  been  often  decided,  can  not  add  or  enlarge,  extend  or 
change  the  sense  of  the  previous  words;  and  the  matter  to  which  it  alludes  must 
always  appear  from  the  antecedent  parts  of  the  declaration ;  but  when  the  new 
matter  stated  in  an  innuendo  is  not  necessary  to  support  the  action,  it  may  be 
rejected  as  surplusage.     1  Chitty,  383 ;   9  East,  93 ;   Roherts  v.  Camden. 


268  ECCLESIASTICAL  LAW. 


charging  the  defendant  with  gross  depravity  and  fraud  upon 
circumstances  merely,  evidence  of  uniform  integrity  and  good 
character  are  oftentimes  the  only  testimony  whicli  a  defendant 
3an  oppose  to  suspicious  circumstances.'  Thus,  evidence  affect- 
ing the  previous  general  character  of  the  wife  or  daughter  in 
regard  to  chastity  is  receivahle  in  an  action  by  the  husband  or 
father  for  seduction,  provided  it  refers  to  a  time  subsequent  to 
the  act  complained  of.  In  criminal  cases,  Avhere  the  evidence 
adduced  for  and  against  a  prisoner  is  nearly  balanced,  the  defend- 
ant may  give  in  evidence  proof  of  good  character,  whicli  may  be 
A'er}'  important  for  his  defense,  though  the  prosecution  has  no 
right  to  introduce  evidence  tending  to  impeach  the  defendant's 
character  until  the  defendant  has  attempted  in  the  first  instance 
to  sustain  it.      Until  then  the   prosecution  must  be   confined  to 

The  judge  adniitted  the  defendant's  right  to  publish  a  correct  account  of  the 
plaintiff's  trial,  but  limited  this  right  to  the  publication  of  a  true  history  of  it; 
and  he  stated  that  the  defendant  had  put  the  plaintiff's  acquittal  solely  on  the 
ground  that  Gibbs,  the  only  witness,  stood  in  the  light  of  an  accomplice,  when 
it  appeared  that  his  credit  was  otherwise  materially  impeached,  and  that  on  this 
ground  the  plaintiff  was  entitled  to  recover. 

There  is  not  a  dictum,  to  be  met  with  in  the  books,  that  a  man,  under  the 
pretense  of  publishing  the  proceedings  of  a  court  of  justice  may  discolor  and 
garble  the  proceedings  by  his  own  comments  and  constructions  so  as  to  effect 
the  purpose  of  aspersing  the  characters  of  those  concerned.  In  the  case  of 
fiWes  V.  Nokes,  1  East,  493,  the  Court  laid  down  the  true  distinction,  and  whilst 
they  admitted  that  a  fair  account  of  judicial  proceedings  miglit  be  published  with 
impunity,  they  held  that  the  writer  could  not  introduce  his  own  comments,  in- 
sinuating the  commission  of  perjury.  It  is  impossible  to  read  the  libel  in  this 
case  without  understanding  that  the  defendant  meant  to  insinuate  that  the  ])lain- 
tiff  had  received  the  counterfeit  money  with  intent  to  pass  it.  But  it  is  said  that 
the  animadversion  was  not  on  the  plaintiff,  but  on  the  legislature  for  appointing 
the  plaintiff  treasurer  wlthotit  Investigation.  How  was  the  legislature  bhimable 
for  making  the  appointment  unless  tlic  indictment  and  trial  of  the  plaintiff,  as 
[lublislu'd  by  the  defendant,  lielil  up  the  plaintiff  as  probably  guilty,  notwith- 
standing his  trial  and  acquittal?  If  the  only  witness  stated  himself  to  be  an 
aceomplife,  and  was  otherwise  tulally  discredited,  from  the  infamy  of  his  char- 
acter and  Ills  malice  towards  the  phiinlid' (and  on  these  grounds  the  plaintiff 
was  acquitted),  what  investigation  was  to  be  made?  I  am  perfectly  satisfied  that 
the  libel  contains  a  highly  colored  account  of  the  proceedings,  that  it  suppresses 
for  bad  purposes  material  facts,  and  that  it  conveys  insinuations  of  the  jilain- 
tiff's  guilt,  unauthorized  by  the  trial  and  the  facts  which  transpired  at  the  time 
of  the  trial;  atul  if  sf),  the  infrrcncc  of  malice  was  inevitable.  Thomas  v.  Cros- 
tcell,  7  John.  2(\<.). 

'  Hiian  v.  7'rrry,  ?.  Caines,  II.  120. 


EVIDENCE  OF  GENERAL  CHARACTER,  2G9 

evidence  tending  to  prove  the  offense  complained  of.  Wliere 
evidence  of  general  character  is  admitted,  it  ought  to  bear  upon, 
and  have  reference  to,  the  nature  of  the  charge  made  against  the 
accused.  Thus,  the  defendant  will  not  be  permitted  to  prove 
that  the  plaintiff  is  reputed  a  common  prostitute  when  the  woi-ds 
charged  in  an  action  of  libel  or  slander  were  that  she  was  a  thief.  ^ 
Where  proof  of  general  character  is  resorted,  to  it  must  be  con- 
fined to  the  proof  of  character  before  the  commission  of  the  act 
complained  of  and  to  the  estimation  in  which  the  person  is  held 

^  This  is  a  case  of  slander.  The  following  is  the  opinion  of  the  Court,  by 
Marcy,  J. :  It  is  said  the  judge  erred  in  refusing  testimony  of  the  bad  character 
of  the  plaintiff  subsequent  to  the  speaking  of  the  words  laid  in  the  declaration. 
It  is  a  well  established  principle,  that  the  defendant  in  an  action  of  slander 
may  mitigate  damages  where  he  has  not  justified  by  proving  the  general  bad 
character  of  the  plaintiff  before  and  at  the  time  of  uttering  the  slanderous  words 
imputed  to  him,  but  proof  of  bad  character  subsequent  to  that  time  is  not  ad- 
missible. 2  Campb.  R.  251 ;  Starkie's  Ev.  pt.  4,  3(i9,  878.  Although  the  bad 
character  which  the  defendant  offered  to  prove  as  existing  subsequent  to  the 
words  spoken  was  of  such  a  description  that  it  could  not  have  been  caused  by  a 
belief  of  the  charge  made  by  the  defendant,  that  circumstance  should  not  induce 
the  Court  to  extend  the  rule  of  law  on  this  subject  beyond  the  limits  established 
by  the  authorities  referred  to,  because  if  such  was  known  to  be  the  rule,  defend- 
ants might  indirectly  contribute  to  the  reputation  of  the  plaintiffs'  bad  charac- 
ters for  the  very  purpose  of  reducing  the  damages  in  actions  of  slander  already 
instituted  against  them. 

Jones,  one  of  the  defendant's  witnesses,  went  to  Owego,  the  former  resi- 
dence of  the  plaintiff,  to  learn  her  character  and  to  subpoena  witnesses  to  prove 
such  character  while  she  resided  at  that  place,  and  the  defendant  offered  to  prove 
by  him  that  he  learned  while  at  Owego  that  her  character  was  bad;  but  the 
judge  refused  to  admit  this  evidence.  This  mode  of  establishing  the  plaintiff's 
bad  character  seems  to  be  unusual,  and,  as  a  general  rule,  there  is  much  reason 
to  fear  it  would  prove  a  very  unsafe  one.  The  general  character  is  the  estima- 
tion in  which  a  person  is  held  in  the  community  where  he  has  resided,  and  or- 
dinarily the  members  of  that  community  are  the  only  proper  witnesses  to  testify 
as  to  such  character.  It  would  be  unsafe  to  rely  upon  the  testimony  of  the  de- 
fendant's agent  sent  into  that  community,  an  entire  stranger,  it  may  be,  to  collect 
information  to  subserve  the  defendant's  views  in  the  suit.  Such  witness  would 
not  speak  of  his  knowledge  of  the  plaintiff's  character  or  give  his  own  opinion 
in  relation  thereto,  but  barely  state  his  conclusion  upon  the  information  received 
from  others.  This  would  be  hearsay  evidence  and  nothing  more.  Evidence  of 
character  is  founded  on  opinion,  and  a  witness  testifying  as  to  the  general  char- 
acter. Phil.  Ev.  209-212.  His  testimony  was,  therefore,  properly  refused  by 
the  judge.  For  the  same  reason  the  evidence  of  what  two  persons  from  Owego 
(who  had  at  another  Circuit  attended  as  witnesess  for  the  defendant  in  this  cause) 
related  was  very  properly  rejected.     Douglass  v.  Tansey,  2  Wendell,  355. 


270  ECCLESIASTICAL  LAW. 

in  the  community  where  he  resides ;  and  such  proof  must  ordi- 
narily come  from  members  of  that  community,  as  they  are  the 
only  proper  witnesses  to  testify  to  such  character.  A  distinction 
is  made  between  allegations  of  fraud  tliat  put  the  character  in 
issue  where  the  allegations  are  involved  by  the  plea  only  and  in 
allegations  of  fraud  founded  upon  the  nature  of  the  action.^ 
Such  evidence  is  not  received  in  actions  of  assault  and  battery, 
nor  in  actions  of  assumpsit,  nor  in  trespass  on  the  case  for  mali- 
cious prosecution,  except  where  the  offense  involves  the  charge 
of  an  infamous  crime. 

It  is  a  rule  of  law,  that  in  the  prosecution  of  any  cause,  neither 
party  shall  be  permitted  to  give  evidence  of  any  matter  which  is 
not  in  issue,  because  the  other  party  would  have  no  opportunity 
of  encountering  this  evidence  by  opposing  testimony,  the  issue 
being  formed  for  the  purpose  of  notifying  the  parties  of  what 
they  will  be  called  upon  to  meet. 

Consistently,  however,  with  this  rule,  the  plaintiff's  rank 
and  condition  in  life  may  be  given  in  evidence  in  an  action  of 
slander  because  it  is  an  issue,  for  the  knowledge  of  it  may  be 
necessary  to  a  just  assessment  of  the  damages,  and  because  it  is 
a  fact,  in  its  nature,  of  general  notoriety.  But  the  rule  will  not 
admit  evidence  of  the  particular  facts  in  the  defendant's  state- 
ments, for  the  knowledge  of  particular  facts  is  not  useful  even  in 
the  assessment  of  damajres.^ 


^  Anderson  v.  Long^  10  Sergeant  &  Rawle  R.  55  ;  Patter  v.  Wehh  et  al.  6 
Greenl.  R.  14;    Gregory  v.  Thomas,  2  Bibb.  28G. 

^  In  the  case  oi  Lamed  v.  BuJ/inton,  the  Court,  by  Parsons  C.  J.,  say:  This 
action  is  on  the  case  for  malicious  prosecution  and  for  defamatory  words  charg- 
ing the  plaintiff  with  stealing  the  defendant's  horses.  The  defendant  pleaded 
the  truth  of  the  words  in  justification,  and  issue  was  joined  on  a  traverse  of  this 
plea,  and  a  verdict  found  for  the  plaintiff. 

The  defendant  moves  for  a  new  trial  because  evidence  proper  to  mitigate  the 
damages  was  rejected  by  the  judge,  and  because  he  misdirected  the  jury  on  the 
subject  of  damages;  and  on  these  two  grounds  exceptions  are  filed.  The  de- 
fendant failing  in  his  justification,  proposes  to  prove  in  mitigation  of  damages, 
the  manner  and  condition  of  the  plaintiff's  life,  and  that  previous  to  the  cause  of 
action  his  general  character  for  honesty,  integrity,  and  fair  dealing  was  not  good. 
Evidence  of  this  nature  was  not  admitted  by  tlie  judge. 

On  the  argument  it  was  observed  by  the  Court  that  a  general  statement  of 
evidence  proposed  to  be  given,  witliout  producing  witnesses  to  testify  agreeably 
to  the  statement,  was  not  regular,  and  the  defendant  was  called  upon  to  state  the 


EVIDENCE  OF  GENERAL  CHARACTER.  271 

facts  he  was  ready  to  prove.  He  accordingly  stated  by  aflldavlt,  that  he  at  the 
trial  had  witnesses  to  prove  "that  the  piaintitF  left  his  father,  a  few  years  since, 
before  he  was  of  age,  and  without  any  property;  that  since  that  time  he  had  been 
a  roving  single  man,  without  any  fixed  place  of  residence  for  any  great  length 
of  time,  and  without  having  any  regular  business,  having  lived  in  Boston,  Wil- 
braham,  Springfield,  Middletoti,  Wortliington,  and  Northampton;  that  he  has  in 
some  of  those  places  been  considered  as  a  drover,  in  others  a  butcher,  and  in  a 
very  circumscribed  manner  had  followed  those  branches  of  business,  but  that  the 
principal  {tart  of  his  time  had  been  employed  in  buying,  selling,  and  exchanging 
horses  in  the  different  parts  of  this  and  adjacent  States;  and  that  he  was  with- 
out real  estate,  and  that  in  the  manner  of  gaining  subsistence  and  in  his  grade 
and  standing  in  society,  he  was  below  mediocrity." 

After  this  statement  the  Court,  in  forming  their  opinion,  have  considered 
evidence  of  these  facts  as  regularly  offered  by  the  defendant  and  as  rejected  by 
the  judge. 

As  the  defendant  has  not  stated  that  any  evidence  was  offered  touching  the 
plaintiff's  moral  character,  it  is  not  necessary  to  give  an  opinion  whethei"  such 
evidence  would  have  been  legal  But  we  are  of  opinion  that  the  plaintiff  may 
give  in  evidence,  to  aggravate  the  damages,  his  own  rank  and  condition  of  life, 
and  also  that  the  defendant  may  avail  himself  of  such  evidence  when  it  will  have 
a  legal  tendency  to  mitigate  the  damages,  and  that  this  may  be  done  either  on 
the  general  issue  or  on  a  traverse  of  the  justification,  because  the  degree  of  injury 
the  plaintiff  may  sustain  by  the  defamation  may  very  much  depend  upon  his 
rank  and  condition  in  society. 

It  is  a  rule  of  law,  that  in  the  prosecution  of  any  cause  neither  party  shall 
give  evidence  of  any  matters  which  are  not  in  issue,  because  the  other  party 
will  have  no  opportunity  of  encountering  this  evidence  by  opposing  testimony. 

Consistently  with  this  rule,  the  plaintift"s  rank  and  condition  in  life  may  be 
given  in  evidence  because  it  is  in  issue,  as  a  knowledge  of  it  may  be  necessary  , 
to  a  just  assessment  of  damages,  and  because  it  is  a  fact  in  its  nature  of  general 
notoriety.  But  the  rule  will  not  admit  evidence  of  the  particular  facts  in  the 
defendant's  statement,  or  the  plaintiff  must  be  considered  as  at  all  times  pre- 
pared to  give  a  history  of  his  places  of  abode  and  of  his  occupation  during  a 
great  part  of  his  life,  even  in  his  minority,  and  to  have  with  him  liis  title  to  real 
estate  if  he  has  any.  Neither  does  the  knowledge  of  the  facts  appear  useful  in 
the  assessment  of  damages,  unless,  perhaps,  to  aggravate  them  by  proving  to 
the  jury  that  the  plaintiff  was  very  generally  known  among  his  fellow-citizens, 
and  that  from  this  circumstance  the  injury  from  the  slander  would  be  more 
extensive. 

We  are  now  to  consider  whether  the  plaintiff's  rank  and  condition  in  life, 
which  the  defendant  offered  in  evidence,  would  have  had,  in  this  case,  any  legal 
tendency  to  mitigate  the  damages. 

The  allegation  that  the  plaintiff's  manner  of  gaining  subsistence,  and  that 
his  station  and  condition  in  society  was  below  mediocrity,  when  connected  with 
the  other  allegations  in  the  defendant's  statements  would,  if  proved,  satisfy  the 
jury  that  the  plaintiff  gained  his  subsistence  by  buying,  selling,  and  exchanging 
horses  in  this  and  the  neigboring  States ;  or,  in  other  words,  that  he  was  a  horse 
jockey.     Now,  from  the  nature  of  this  action  and  from  the  evidence  in  the  cause, 


272  ECCLESIASTICAL  LAW. 

it  is  not  easy  to  presume  tliat  the  jury  had  not  evidence  of  these  facts.  It  was 
the  interest  of  the  plaintiff  they  should  have  this  evidence,  as  its  tendency  in  this 
case  would  rather  have  been  to  aggravate  the  damages.  A  man  with  the  repu- 
tation of  a  horse  stealer  is  ruined  as  a  dealer  in  horses.  With  this  character 
hanging  on  him,  no  man  would  trust  him  to  try  a  horse,  and  no  man  would  buy 
a  horse  of  him  through  fear  he  should  buy  a  stolen  one.  We  are,  therefore,  of 
opinion  that  this  evidence,  if  given  by  the  defendant,  would  have  no  legal  tend- 
ency to  mitigate  the  damages,  and  consequently  he  is  not  injured  by  its  rejection. 

The  defendant  has  also  excepted  against  the  direction  of  the  judge  because 
he  charged  the  jury  that  considering  the  circumstances  which  had  been  proved, 
the  manner  of  speaking  the  words,  and  especially  the  justification  of  the  de- 
fendant on  record,  no  evidence  whatever  could  be  considered  in  mitigation 
of  damages. 

We  are  satisfied  that  evidence  of  ccrlain  facts  and  circumstances  may  be 
received  under  the  general  issue  which  ought  to  be  rejected  under  tliis  justifica- 
tion. In  the  former  case  the  defendant  may  prove  that  the  words  were  spoken 
through  heat  or  passion,  and  not  from  malice ;  or  that  they  were  spoken  with  an 
honest  intention  through  mistake,  and  not  with  a  design  to  injure  the  plaintiff. 
But  if  the  defendant,  when  called  upon  to  answer  in  a  court  of  law,  will  deliber- 
ately declare  in  his  plea  that  the  words  are  true,  he  precludes  himself  from  any 
attempt  to  mitigate  the  damages  by  any  of  those  facts  or  circumstance,  because 
his  plea  of  justification  is  inconsistent  with  them.  Jackson  v.  Stetson  et  al. 
15  Mass.  48  ;   Alder-man  v.  French,  1  Pick.  1. 

But  we  are  not  prepared  to  declare  that  there  are  no  facts  or  circumstances 
from  which  the  jury  may  mitigate  the  damages  under  a  special  justification  of 
the  truth  of  the  words  in  which  he  shall  fiiil.  When,  through  the  fault  of  the 
plaintiff,  the  defendant,  as  well  at  the  time  of  speaking  the  words  as  when  he 
pleaded  his  justification,  had  good  cause  to  believe  they  were  true,  it  appears 
reasonable  that  the  jury  should  take  into  consideration  this  misconduct  of  the 
plaintiff  to  mitigate  the  damages.  The  dire&tion  of  the  judge  excepted  against 
is  predicated  not  only  on  the  plea  of  justification,  but  also  on  the  circumstances 
which  had  been  proved  in  the  case.  He  has,  therefore,  at  the  request  of  the 
Court,  furnished  us  with  a  report  of  the  evidence  in  the  cause. 

From  this  report  it  substantially  appears  that  the  plaintiff  had  several  horses 
at  the  defendant's  Ktal)le  in  Worthington  at  livery;  that  all  the  horses  were  the 
property  of  the  plaintiff  excejit  a  black  horse  which  was  the  joint  property  of  the 
parties;  that  the  plaintiff  wanted  the  black  horse  to  match  one  of  his  own,  and 
that  the  defendant  wanted  him  for  the  same  purpose  ;  that  the  plaintiff  practiced 
finesse  in  removing  the  horses  from  the  defendant's  stable,  and,  in  fact,  removed 
them  without  the  defendant's  knowledge  to  Mills's  stable,  distant  about  half  a 
mile ;  that  the  next  day  the  defendant  knew  they  were  at  Mills's  stable,  and  was 
there  with  the  plaintiff  trying  to  adjust  the  controversy,  and  offered  the  plaintiff 
to  arbitrate  it,  which  he  refused;  that  about  two  days  afterwards  the  plaintiff 
took  all  his  horses  and  went  on  with  them  to  the  eastward;  that  the  defendant 
followed  him,  and  nii<rht  have  arrested  him  at  Northampton,  but  declined  it  be- 
cause he  might  attach  more  property  when  the  plaintiff  had  gone  further  on; 
that  the  defendant  arrested  him  at  Belchcrtown  on  a  writ  which  he  did  not  pro- 
secute;  that  at  about  the  time  of  the  arrest,  and  also  after  the  plaintiff  was  in 


EVIDENCE  OF  GENERAL  CHARACIER.  273 

custody,  lie  repeatedly  uttered  the  defamatory  words;  that  about  the  same  time 
he  told  a  witness  that  the  horses  were  not  his,  except  the  black  horse,  which  was 
half  his,  but  that  it  was  best  to  use  policy. 

From  considering  the  report  of  the  evidence  we  are  satisfied  that  the  judge's 
direction,  predicated  on  this  evidence,  was  right.  It  does  not  appear  that  the 
defendant  ever  supposed  that  the  defamatory  words  were  true.  He  knew  that 
all  the  horses  were  the  plaintiff's  e.xcept  the  black  horse,  and  of  him  that  the 
plaintiff  was  part  owner.  This  he  declared,  but  said  it  was  necessary  to  use 
policy.  Indeed,  the  inference  is  that  he  knew  the  words  were  not  true,  for  at 
Mills's  he  did  not  charge  the  plaintiff  with  theft,  but  attempted  to  settle  the  dis- 
pute and  offered  to  arbitrate  it.  Afterwards,  when  he  has  had  time  for  recon- 
sideration and  to  obtain  the  information  of  counsel  as  to  the  law  as  applied  to 
the  fact,  he  comes  into  court  and  publicly  puts  the  slander  on  record. 

It  is  our  opinion  that  a  new  trial  be  not  granted,  and  that  judgment  be  ren- 
dered according  to  the  verdict,  with  the  additional  damages  and  costs  as  con- 
sented to  by  the  defendant  in  his  agreement  on  file.  Lamed  v.  Buffinton, 
5  Mass.  546. 

In  the  case  of  Inman  v.  Foster,  the  Court  say,  by  Savage,  C.  J.,  that  the 
case  does  not  state  what  were  the  words  nor  the  nature  of  the  charge  they  con- 
tain, neither  does  it  state  what  was  the  evidence  given  in  defense.  I  must  take 
it  for  granted  that  the  defendant  did  not  name  his  author  when  he  uttered  the 
slanderous  words. 

The  first  question  is,  whether  he  should  have  permitted,  in  mitigation  of 
damages,  to  prove  that  Brown  told  him  the  story  which  he  reported.  It  was  re- 
solved in  Northampton's  case  (12  Co.  134),  ''that  if  J.  S.  publish  that  he  hath 
heard  J.  M.  say  that  J.  G.  was  a  traitor  or  thief,  in  an  action  of  the  case,  if  the 
truth  be  such  he  may  justify."  In  Davis  v.  Lewis,  7  T.  R.  17,  Lord  Kenyon 
says,  "If  a  person  say  that  such  a  particular  man  [naming  him]  told  him  cer- 
tain slander,  and  that  man  did  in  fact  tell  him  so,  it  is  a  good  defense  to  an  ac- 
tion to  be  brought  by  the  person  of  whom  the  slander  was  spoken,  but  if  he 
assert  the  slander  generally,  without  adding  who  told  it  to  him,  it  is  actionable." 
The  same  rule  is  found  in  Maitland  v.  Gohling,  2  East,  436,  and  Woodicorih  v. 
Meadoics,  5  East,  -169,  in  such  case  the  words  must  be  given,  so  as  to  give  an 
action  against  the  person  who  first  uttered  them.  This  is  denied  to  be  law  by 
this  Court,  in  Dole  v.  J^yon,  10  John.  R.  447.  Kent,  C.  J.,  says,  "Words  of 
slander  with  the  name  of  the  author,  may  be  repeated  with  malicious  intent,  and 
with  mischievous  effect."  The  slander  may  derive  all  its  effect  from  the  char- 
acter of  the  person  who  repeats  it,  and  the  author  may  be  utterly  irresponsible. 
In  the  case  of  Woodioorth  v.  Meadows,  the  boy  who  made  the  complaint  and 
told  the  story  was  only  nine  years  old:  of  what  avail  is  a  right  of  action  against 
such  an  originator?  In  the  case  of  Dole  v.  i?/o?2,  it  was  established  that  the 
publisher  of  a  libel,  with  the  name  of  the  author,  was  liable  to  an  action,  not- 
withstanding the  name  of  the  author.  In  Lewis  v.  Walton,  4  Barn.  &  Old.  the 
doctrine  of  Northampton's  case  is  qualified  to  a  publication,  on  a  fair  and  justi- 
fiable occasion,  without  malice.  It  is  not  contended  in  this  case,  that  the  fact 
offered  to  be  proved  was  a  justification,  but  only  a  circumstance  in  mitigation  ; 
when  the  slander  was  published  no  name  was  given.  It  is  in  that  respect  like 
Mills  &  wije  V.  Spencer  &  wife,  Holt,  532;  3  Com.  Law  R.  177;  the  defendant 


274  ECCLESIASTICAL  LAW. 


had  pleaded  according  to  Northampton's  case  and  the  others  referred  to,  that  a 
certain  person  had  communicated  the  slander,  and  that  the  name  had  been 
given  at  the  time  of  speaking  the  words.  On  the  trial  the  defendant's  counsel 
did  not  attempt  to  support  these  pleas,  but  offered  evidence  that  the  defendant's 
wife  had  heard  the  charge  from  other  persons,  and  made  the  communication  by 
way  of  caution;  tliis  was  offered  in  mitigation,  and  it  was  argued  on  the  author- 
ity of  Leicester's  case,  that  it  diminished  the  malice.  Gibbs,  C.  J.,  said  that 
Leicester's  case  stood  on  evidence  of  general  suspicion  ;  but  this  was  a  proposi- 
tion to  mitigate  damages  by  showing  that  the  specific  slander  was  communi- 
cated by  a  third  person;  the  slander  imputed  was  stated  as  a  fact  of  the  defend- 
ant's own  knowledge,  and  slie  can  not,  when  called  to  answer  for  it,  say  another 
person  told  me  so.  If  an  action  be  brouglit  against  A  for  calling  B  a  thief,  it  is  no 
defense  for  A,  under  the  general  issue,  to  prove  that  he  was  told  so  by  C;  A  is 
answerable  for  the  full  measure  of  his  slander.  He  adds,  '"  If  he  qualifies  his 
charge,  or  annexes  to  it,  at  the  time  of  uttering  it,  his  author  [naming  him]  it 
opens  another  consideration.  General  reports  have  been  admitted  in  mitiga- 
tion of  damages,  but  not  specific  facts."  In  this  Court  we  neither  receive  gen- 
eral reports  nor  specific  facts,  as  has  been  decided  in  several  cases.  Both  stand 
on  the  same  principle,  unle.«s  by  general  report  is  meant  general  character. 
This  evidence  has  been  admitted  in  Pennsylvania  in  Kennedy  v.  Gregory,  1  Bin. 
85,  and  Morris  v.  Ditane,  p.  90,  upon  the  authority  of  the  English  eases,  which 
were  rejected  by  Ciiief-Justlce  Gibbs.  The  same  evidence  has  been  rejected  in 
Connecticut  In  Ti-eat  v.  Browning,  4  Conn.  II.  415.  Chief-Justice  Hosmer  says, 
"The  Court  rejected  evidence  offered  to  prove  in  mitigation  of  damages,  that 
prior  to  the  publication  of  the  words  by  the  defendant  Catherine,  she  had  heard 
them  from  a  Mrs.  Browning ;  and  this  has  given  rise  to  another  objection.  The 
cases  which  have  been  decided  on  this  subject  do  not  harmonize;  but  the. pre 
ponderance  of  the  determinations,  in  my  judgment,  is  against  the  admission  of 
the  proffered  testimonj'."  He  tlien  cites  most  of  the  cases  on  the  point,  and 
concludes  by  stating  that  the  testimony  was  a  surprise  upon  the  plaintiff,  and  it 
was  far  more  just  that  the  defendant  who  had  made  an  unqualified  charge  on 
the  ])laint:ff  should  be  answerable  for  the  full  measure  of  her  slander. 

In  Coleman  v.  Souilnvick,  9  John.  48,  the  defendant  offered  to  prove  infor- 
mation he  had  received  from  a  third  person,  and  it  was  rejected  chiefly  on  the 
ground  that  the  person  him.self  who  gave  the  information  was  the  best  witness 
to  prove  it ;  the  attention  of  the  Court  does  not  appear  by  the  report  of  the  case  to 
have  been  drawn  to  the  inadmissibility  of  the  testimony  as  improper  in  itself; 
but  Kent,  C.  J.,  remarks,  "  That  the  Pennsylvania  cases  have  extended  the  En- 
glish rule.  In  the  case  of  Dole  v.  Lyon,  which  was  subsequent,  it  was  held  that 
testimony  of  a  similar  quality  could  not  be  received.  The  case  of  Naps  v. 
Weeks,  4  Wendell,  (>59,  is  in  point.  According  to  the  rule  of  this  Court,  which 
I  have  shown  is  also  the  rule  of  the  English  Court,  as  well  as  the  courts  of 
Connecticut  and  Massachusetts,  the  testimony  offered  was  rightly  rejected  Al- 
though such  evidence  may  tend  to  diminish  the  malice,  yet  it  does  not  disprove 
it;  and  the  effect  it  is  calculated  to  produce  on  the  plaintiff  is  to  render  his 
character  suspicious.  Its  tendency  is,  if  not  to  prove  the  truth,  yet  to  create 
suspicions  of  the  plaintiff's  guilt,  wlien  the  defendant  dare  not  prove  it;  and, 
therefore,  such  testimony  is  inadmissible. 


EV1DE^XE  OF  GENERAL  CHARACTER.  275 

The  second  point  is,  that  the  judge  erred  in  excluding  reports.  On  tliis 
point  I  shall  not  enter  into  any  argument;  the  question  is  settled  in  this  Court 
Matson  v.  Bush^  5  Cowen,  4!)9;  Root  v.  King,  7  id.  61.S;  6  Mas.s.  R.  514;  4 
Wendell,  6')9;  and  Gilman  v.  Lowell,  ante,  57H.  The  third  point  raised  at  the 
trial  was  not  insisted  on  upon  the  argument,  as  even  if  wrong  no  injury  was  sus- 
tained ;  it  was  wrong  so  far  as  it  was  admitted  to  sustain  the  action,  and  ri<'lit 
so  far  as  to  prove  malice.  4.  Words  were  received  to  sup])ort  malice  that  were 
uttered  more  than  two  years  before  suit  was  brought.  It  is  stated  in  Buller's 
Nisi  Prins,  p.  7,  that  after  the  plaintiff  has  proved  the  words  as  laid,  he  may  give 
evidence  of  other  expressions  made  use  of  by  the  defendant  as  proof  of  his  ill 
will  towards  him.  The  cases  in  England  on  this  point  are  nisi  prins  decisions- 
Words  not  laid  are  given  in  evidence,  not  to  sustain  the  action,  it  is  said,  but  to 
show  malice,  the  qno  animo  the  words  laid  in  the  declaration  were  spoken ;  and 
in  this  point  of  view  it  is  immaterial  whether  they  are  actionable  or  not,  pro- 
vided they  show  malice.  In  some  of  the  cases  the  plaintiff  was  confined  to 
words  not  actionable,  spoken  after  the  words  laid  in  the  declaration;  in  others, 
any  words  have  been  received  spoken  at  any  time,  but  when  subsequent 
actionable  words  are  proved,  it  is  said  the  jury  should  be  cautious  not  to  give 
damages  for  such  words.  (Peake's  Nisi  Prins,  22,  75,  125,  16(i;  1  Campb.  -18; 
Starkie  on  Slander,  B98 ;  3  Binney,  550.  Were  this  question  free  from  embar- 
rassment on  the  ground  of  authority,  I  should  think  with  Chief-Justice  Tilgman, 
and  with  Chief-Justice  Spencer,  7  John.  R.  270,  that  the  practice  is  dangerous; 
for  though  t^ie  jury  are  charged  not  to  give  damages  for  such  words  they  mav  be 
imperceptibly  influenced  by  them.  And  why  should  evidence  be  given  to  the 
jury  which  is  not  to  influence  the  verdict?  the  actionable  words  laid  and  proven 
sustain  the  action;  they  imply  malice;  then  why  prove  more  malioe  but  to  en- 
hance damages?  and  yet  the  jury  are  told  not  to  give  damages  for  such  words; 
at  most,  then,  they  are  given  to  prove  malice,  which  was  before  sufficiently 
proven.  There  is  certainly  less  danger  in  proving  words  spoken  two  years  be- 
fore, for  which  no  action  can  be  brought,  than  words  spoken  subsequently,  and  after 
suit  brought,  for  which  another  action  may  be  sustained.  Upon  authority,  how- 
ever, such  words  were  properly  received.  In  Thomas  v.  Crosicell,  Chief-Justice 
Spencer  doubts  the  propriety  of  proving  subsequent  libels,  yet  such  evidence 
was  given  in  that  case,  and  a  new  trial  was  refused,  thereby  giving  sanction  to 
the  receiving  of  such  evidence.  It  does  not  distinctly  appear,  however,  in  that 
case  whether  the  subsequent  publications  were  libelous  or  not.  5.  Evidence  was 
admitted  to  prove  the  plaintiff's  general  character.  In  general,  such  evidence 
is  improper,  unless  the  defendant  has  attempted  to  impeach  the  plaintiff's  char- 
acter. 2  Starkie's  Ev.  370,  869;  5  Pick.  24G;  and  in  this  case  the  judge  gave  as 
a  reason  for  receiving  the  evidence  that  the  plaintiff's  reputation  had  been  in 
some  measure  attacked  by  the  evidence  produced  by  the  defendant;  In  that 
point  of  view  it  was  proper. 

I  am  of  opinion  that  a  new  trial  should  be  denied.  Inman  v.  Foster,  8 
Wendell,  GOfi. 

Walcoit  V.  Hall,  6  Mass.  514;  Poss  v.  Lapham,  14  Mass.  275;  Sawyer  v. 
Eifert,  2  Nott  &  M'Cord,  511. 


276  ECCLESIASTICAL  LAW. 


CHAPTER  XXI. 

PRESUMPTIVE    EVIDENCE. 

In  tlie  present  clmpter  it  is  proposed  to  treat  of  the  nature 
aiifl  quality  of  evidence  in  regard  to  presumptions  of  law  and 
fact  as  contradistinguished  from  direct  proof.  It  often  happens 
that  the  fsicts  proven  are  not  the  precise  facts  in  issue;  but  from 
the  facts  proven  we  come  to  a  conclusion  upon  the  fsicts  in  issue. 
Facts  in  issue,  therefore,  are  said  to  be  established  by  presump- 
tive evidence  when  they  can  not  be  positively  known  but  can  be 
reasonably  presumed  or  inferred  from  one  or  more  other  facts 
or  circumstances  which  are  known  or  proved.^ 

^  To  constitute  a  reasonable  presumption,  a  previous  experience  of  the  con- 
nection between  the  known  and  inferred  facts  is  essentially  of  such  a  nature  that 
as  soon  as  the  existence  of  the  one  is  established,  admitted,  or  assumed,  an  in- 
ference as  to  the  existence  of  the  other  arises  independently  of  any  reasoning 
on  the  subject.  It  folli>ws,  that  an  inference  may  be  certain  or  not  certain,  but 
merely  probable,  and  therefore  capable  of  being  rebutted  by  contrary  proof  In 
general,  a  presumption  is  more  or  less  strong  according  as  the  fiict  jiresumed  is 
a  necessary,  usual,  or  infrequent  consequence  of  the  fact  or  facts  seen,  known, 
or  proven.  When  the  fact  inferred  is  the  necessary  consequence  of  the  fact  or 
facts  known,  the  presumption  amounts  to  a  proof;  when  it  is  the  usual  but  not 
the  invariable  consequence,  the  presumption  is  weak;  but  when  it  is  sometimes, 
thongh  rarely,  the  consequence  of  the  fact  or  facts  known,  the  presumption  is  of 
no  weight,     Menthuel  svr  les  Conventions^  tit.  5.     See  Damat.  liv.  9,  tit.  6. 

Presumptions  are  either  legal  and  artificial  or  natural.  Legal  or  artificial 
presumptions  are  such  as  derive  from  the  law  a  technical  or  artificial  operation 
and  effect  beyond  their  mere  natural  tendency  to  produce  belief  and  operate 
uniformly  without  applying  the  process  of  reasoning  upon  which  they  are  founded, 
to  the  circumstances  of  the  particular  case.  For  instance:  at  the  expiration  of 
twenty  j'ears,  without  payment  of  interest  on  a  bond  or  other  acknowledgment 
of  its  existence,  satisfaction  is  to  be  presumed;  but  if  a  single  day  less  than 
twenty  years  has  elapsed,  the  presumption  of  satisfaction  from  mere  lapse  of  time 
does  7iot  arise.  This  is  evidently  an  artificial  and  arbitrary  distinction.  An  ex- 
am j)le  of  another  nature  is  given  under  tliis  head  by  the  civilians.  If  a  mother 
and  her  infant  at  the  breast  perish  in  the  same  conflagration,  the  law  presumes 
that  the  mother  survived  and  that  the  infant  perished  first  on  account  of  its 
weakness,  and  on  this  ground  the  succession  belongs  to  the  heirs  of  the  mother. 

Legal  [iresumptions  are  of  two  kinds:  first,  such  as  are  made  by  the  law 
itself,  or  presumptions  of  mere  law;  secondly,  such  as  are  to  be  made  by  a  jury, 
or  presumptions  of  law  and  fact.  Presumptions  of  mere  law  are  either  absolute 
and   conclusive,  as,  for  instance,  the  presumption  of  law  that  a  bond  or  other 


PRESUMPTIVE  EVIDENCE.  277 

The  ground  of  all  presumptions  is  the  necessary  or  usual  con- 
nection between  facts  and  circumstances,  the  knowledge  of  which 
connection  residts  from  experience  and  reflection.  Presumptions 
are,  tlierefore,  inferences  as  to  the  existence  of  a  fact  not  actually 
known,  arising  from  its  necessary  or  usual  connection  with  other 
facts  which  are  known.  It  is  upon  this  principle,  that  all  our 
knowledge  of  those  relations  and  existences  which  are  not  percep- 
tible to  the  human  senses  must  depend  upon  the  force  of  presump- 
tions, which  in  many  instances  are  almost  intuitively  perceived  by 
mankind.  That  faculty  of  the  mind  which  prepares  it  to  expect 
the  future  association  of  circumstances  because  it  has  been  ac- 
customed to  find  them  associated,  can  not  be  accounted  for  except 
by  reference  to  the  law  of  nature.  It  is  the  same  faculty  that 
leads  us  to  reason  upon  cause  and  effect  in  all  the  regions  of  in- 
ductive philosophy,  of  which  the  doctrine  of  pi'esumptive  evi- 
dence ranks  as  an  important  branch.  Thus  the  presumptions  of 
a  malicious  intent  to  murder  from  the  deliberate  use  of  a  deadly 
weapon;  also  the  presumption  of  aquatic  habits  in  an  animal 
found  with  web    feet.     These  belong  to    the   same   philosophy, 

specialty  was  executed  upon  a  good  consideration,  can  not  be  rebutted  by  evi- 
dence so  long  as  the  instrument  is  not  impeached  for  fraud  (4  Burr.  2225),  or 
they  are  not  absolute  and  may  be  rebutted  by  evidence ;  for  example,  the  law 
presumes  that  a  bill  of  exchange  was  accepted  upon  a  good  consideration,  but 
that  presumption  may  be  rebutted  by  proof  to  the  contrary. 

Presumptions  of  law  and  fact  are  such  artificial  presumptions  as  are  recog- 
nized and  warranted  by  the  law  as  the  proper  inferences  to  be  made  by  juries 
under  particular  circumstances ;  for  instance,  an  unqualified  refusal  to  deliver 
up  the  goods  on  demand  made  by  the  owner  does  not  fall  within  any  definition 
of  a  conversion,  but  inasmuch  as  the  detention  is  attended  with  all  the  evils  of 
a  conversion  to  the  owner,  the  Iciw  makes  it,  in  its  effects  and  consequences, 
equivalent  to  a  conversion,  by  directing  or  advising  the  jury  to  infer  a  conver- 
sion from  the  facts  of  demand  and  refusal. 

Natural  presumptions  depend  upon  their  own  form  and  efficacy  in  generating 
belief  or  conviction  on  the  mind  as  derived  from  these  connections  which  are 
pointed  out  by  experience;  they  are  wholly  independent  of  any  artificial  con- 
nections and  relations,  and  differ  from  mere  presumptions  of  law  in  this  essen- 
tial respect,  that  those  depend,  or  rather  are  a  branch  of  the  particular  system 
of  jurisprudence  to  which  they  belong;  but  mere  natural  presumptions  are  de- 
prived wholly,  by  means  of  the  common  experience  of  mankind,  from  the  course 
of  nature  and  the  ordinary  habits  of  society.  Bouvier's  Law  Dictionary, 
Vol.   2,  375. 

19 


278  ECCr.ESTASriCAT.  LAW. 


differing   only  in   the   instance   and   not  in  the   principle   of   its 
application. 

Presumptive  evidence  must  he  as  admissible  in  criminal  pros- 
ecutions as  in  civil  cases  ;  for  whether  the  proceeding  be  of  a 
criminal  or  civil  nature,  the  modes  of  drawing  conclusions  from 
facts,  and  the  methods  of  reasoning,  are  necessarily  the  same. 
When  direct  evidences  of  fact  are  not  attainable — which  fre- 
quently happens  in  some  of  the  worst  forms  of  crime — reasonable 
minds  will  necessarily  form  their  judgments  from  circumstances 
and  act  on  the  probabilities  of  the  case.  As  mathematical  cer- 
tainty is  seldom  to  be  obtained  in  human  affairs,  reason  and  pub- 
lic necessity  require  that  judges  and  other  tribunals  should  form 
their  opinion  of  the  truth  of  facts  from  the  superior  number  of 
probabilities  on  the  one  side  or  the  other,  whether  the  amount  of 
these  probabilities  be  expressed  in  words  or  by  figures.  The  prin- 
cipal difference  between  criminal  and  civil  cases  with  reference  to 
the  mode  of  proof  by  circumstantial  or  direct  evidence  is,  that  in 
the  former  a  greater  degree  of  probability  may  be  safely  required 
as  the  ground  of  judgment  where  life  and  liberty  are  concerned 
than  in  the  latter.  In  criminal  prosecutions,  it  has  been  observed 
that  the  circumstances,  in  order  to  warrant  a  conviction,  should 
be  such  as  to  produce  nearly  the  same  degree  of  certainty  as  that 
Avliich  arises  from  direct  evidence.-^  Doubtless  the  circumstances 
ought  to  be  of  such  a  nature  as  not  to  be  usually  accounted  for 
on  the  supposition  of  the  prisoner's  innocence,  but  perfectly 
reconcilable  with  the  supposition  of  the  accused's  guilt.  In  some 
cases  circumstantial  evidence  may  produce  a  stronger  degree  of 
evidence  of  the  guilt  of  the  accused  than  could  have  been  pro- 
duced by  direct  and  positive  testimony.  This  was  strikingly 
illustrated  in  the  case  of  Isaac  Burkly,  tried  at  Norwalk  Spring 
Assizes,  1816,  for  the  murder  of  Ann  Smith,  a  female  fellow- 
servant  at  a  farm-house.  The  deceased,  Avho  was  about  to  go  into 
another  situation,  asked  the  accused  to  carry  a  box  for  her  to  the 
Goodman  House,  about  a  quarter  of  a  mile  distant.  A  little  be- 
fore seven  o'clock  in  the  evening  the  deceased  went  on  an  errand 
to   take  some   corn  to    a  neighboring   house,  but    it   not   being 

^  Bennett's  Tr.  on  the  Criminal  Law  of  Scotland,  525. 


PRESUMPTIVE  EVIDENCE.  279 

wanted  she  set  out  to  return  with  it.  Soon  after  the  deceased 
set  out  for  her  master's  house  the  accused  followed  her,  carrying 
the  box,  but  he  did  not  reach  the  gardener's  house  until  after 
eight  o'clock.  The  time  was  fixed  from  the  circumstance  of  the 
gardener's  clock  having  stopped  soon  after  the  accused  left  the 
house.  The  deceased  did  not  return  home,  and  on  the  following 
morning  slie  was  found  drowned  in  a  pit  near  a  foot-path  leading 
from  the  gardener's  house  to  her  master's.  One  of  her  shoes  and 
the  bag  in  which  she  had  carried  the  corn  were  found  near  the 
pit.  There  was  some  corn  scattered  about  near  the  spot,  also 
some  Avheat  and  chaft',  and  there  were  also  marks  of  much  tramp- 
ing on  and  about  the  spot  where  the  corn,  wheat,  and  chaff  were 
scattered.  These  were  material  facts,  as  the  prisoner  was  en- 
gaged, the  previous  day,  in  threshing  wheat.  The  prisoner  also 
gave  a  false  account  of  his  whereabouts  dui'ing  his  temporary 
absence  the  preceding  evening.  Impressions  were  found  in  the 
soil,  which  was  stiff  and  retentive,  of  the  knee  of  a  man  who  had 
on  breeches  made  of  striped  coi'duroy  and  patched  with  the  same 
material,  the  patch  not  being  set  on  straight,  the  ribs  of  the  patch 
met  the  hollow  between  the  ribs  of  the  garment  on  which  it  had 
been  placed,  which  circumstance  exactly  corresponded  with  the 
prisoner's  dress.  As  a  general  principle,  however,  it  is  certainly 
true  that  positive  evidence  of  a  fact  from  credible  eye-witnesses 
is  the  most  satisfactory  proof  that  can  be  produced,  and  the  uni- 
versal feeling  of  mankind  leans  to  this  species  of  evidence  in 
preference  to  that  which  is  merely  circtmistantial.  When  the 
fact  itself  can  not  be  proved,  that  which  comes  nearest  to  the 
proof  of  the  facts  is  the  proof  of  the  circumstances  which  neces- 
sarily or  usually  attend  such  facts,  and  which  are  called  presump- 
tions, and  not  proofs,  of  the  facts,  till  the  contrary  be  proved. 

Presumptions  are  divisible  into  two  classes :  presumptions  of 
law  and  presumptions  of  fact.  Presumptions  of  law  are  again 
divisible  into  conclusive  and  disputable  ;  but  there  are  fewer  in- 
stances in  the  law  of  conclusive  presumptions  than  formerly. 
Under  conclusive  presumptions  may  be  classed  statutes  of  limita- 
tion, also  statutes  for  the  prevention  of  fraud  and  circumvention. 
The  possession  of  personal  property  by  the  vendor  after  a  sale 
thereof  is  conclusively  prestimed  to  be  fraudulent,  or,  in  other 
words,  fraudulent  per  se.     When  a  crime  is  known  to  have  been 


280  ECCLESIASTICAL  LAW. 


committed,  presumptive  evidence  is  admissible  to  show  wlio 
committed  it.  And  in  some  cases  presumptions  of  facts  have 
been  received  in  proof  of  the  corpus  delicti,^  as  well  as  to  fix 


^  Every  allegation  of  the  commission  of  legal  orime  involves  the  establish, 
ment  of  two  distinct  propositions;  namely,  that  an  act  has  been  committed  from 
which  legal  responsibilities  arise,  and  that  the  guilt  of  such  act  attaches  to  a 
particular  individual. 

Such  a  complication  of  difficulties  occasionally  attends  the  proof  of  crime, 
and  so  many  cases  have  occurred  of  convictions  for  alleged  offenses  which  have 
never  existed,  that  it  is  a  fundamental  and  inflexible  rule  of  legal  proceedings, 
of  universal  obligation,  to  require  satisfactory  proof  of  the  corpus  delicti,  either 
by  direct  evidence  or  by  cogent  and  irresistible  grounds  of  presumption.  Bex  v. 
Btirdeit,  4  B.  &  Aid.  123,  before  it  is  permitted  to  adduce  evidence  tending  to 
implicate  any  particular  individual.  If  it  be  objected  that  rigorous  proof  of  the 
corpus  delicti  is  sometimes  unattainable,  and  the  effect  of  exacting  it  must  be 
that  crimes  will  occasionally  pass  unpunished,  it  must  be  admitted  that  such 
may  possibly  be  the  result;  but  it  is  answered  that,  where  there  is  no  proof,  or, 
which  is  the  same  thing,  no  sufficient  legal  proof  of  crime,  there  can  be  no  legal 
criminality.  In  penal  jurisprudence  there  can  be  no  middle  term;  the  party 
must  be  absolutely  and  unconditionally  guilty  or  not  guilty.  Nor,  under  any 
circumstances,  can  considerations  of  supposed  expediency  ever  supersede  the 
immutable  obligations  of  justice;  and  occasional  impunity  of  crime  is  an  evil  of 
far  less  magnitude  than  the  punishment  of  the  innocent.  Sucli  considerations 
of  mistaken  policy  led  some  of  the  writers  on  the  civil  and  canon  laws  to  mod- 
ify their  rules  of  evidence,  according  to  the  difficulties  of  proof  incidental  to 
particular  crimes,  and  to  adopt  the  execrable  maxim,  that  the  more  atro- 
cious the  offense,  the  slighter  was  the  proof  necessary ;  i7i  airocissimis  leviores 
covjeclvrce  sufficient  et  licet  judici  jura  transgredi.  Such,  indeed,  is  the  logic 
and  the  inevitable  consequence  when,  from  whatever  motive,  the  plea  of  expedi- 
encv  is  permitted  to  influence  judicial  integrity.  The  clearest  principles  of 
justice  require  that  whatever  the  nature  of  the  crime,  the  amount  and  intensity 
of  the  proof  sh:ill  in  all  cases  be  such  as  to  produce  the  full  assurance  of  moral 
certainty.  Lord  Chancellor  Nottingham,  on  the  trial  of  Lord  Cornwallis,  said, 
"  The  fouler  the  crime  is,  the  clearer  and  the  plainer  ought  the  proof  to  be."  7 
St.  Tr.  1  19.  "Tiie  more  flagrant  the  crime  is,"  said  Mr.  Baron  Legge,  "the 
more  clearly  and  satisfactorily  you  will  expect  that  it  shall  be  made  out  to 
you."  Rex  v.  Blandi/,  18  St.  Tr.  I18G.  Mr.  Justice  Holroyd  said  that,  "The 
greater  the  crime  the  stronger  is  the  proof  required  for  conviction.  Rex  v.  Hob- 
S071,  1  Lewin's  C.  G.  2()1.  In  another  case  Mr.  Justice  Bayley,  in  even  stronger 
terms,  told  the  jury  that,  "In  proportion  of  the  heinousness  and  malignity  of 
the  offense,  there  ought  to  be  a  reasonable  degree  of  certainty  in  the  proof,  and 
that  where  there  is  nothing  but  the  evidence  of  circumstances,  those  circum- 
stances ought  to  be  closely  and  necessarily  connected,  and  to  be  made  out  as 
clear  as  if  there  were  absolute  and  positive  proof"  Rex  v.  Doivning,  Salop  Sum- 
mer Assizes,  1H'22. 

But  it  is  clearly  established,  that  it  is  not  necessary  that  the  corpus  delicti 


PRESUMPTIVE  EVIDENCE.  281 

the  criminal  liaLility  upon  the  perpetrator;  but  to  allow  presump- 
tions in  order  to  swell  an  equivocal  and  ambiguous  fact  into 
a  criminal  one  is  an  entire  misapplication  of  the  doctrine  of  pre- 


should  be  proved  by  direct  and  positive  evidence,  and  it  would  be  most  unrea- 
sonable to  require  such  evidence.  Crimes,  and  especially  tiaose  of  the  worst 
kinds,  are  naturally  committed  at  chosen  times,  and  in  darkness  and  se- 
crecy. And  human  tribunals  must  act  upon  such  indications  as  the  circum- 
stances of  the  case  present  or  admit,  or  society  must  be  broken  up.  Nor  is  it 
very  often  that  adequate  evidence  is  not  afl'urded  by  the  attendant  and  surround- 
ing facts,  to  remove  all  mystery,  and  to  afford  such  a  reasonable  degree  of  cer- 
tainty as  men  are  daily  accustomed  to  regard  as  sufficient  in  the  most  important 
concerns  of  life;  to  expect  moi-e  would  be  equally  needless  and  absurd.  In 
Burdett's  Case,  4  B.  &  Aid.  121,  this  subject  underwent  much  discussion,  and 
was  elaborately  treated  by  the  bench.  Mr.  Justice  Best  said,  "  When  one  or 
more  things  are  proved  from  which  experience  enables  us  to  ascertain  that  an- 
other, not  proved,  must  have  happened,  we  presume  that  it  did  happen,  as  well 
in  criminal  as  in  civil  cases.  Nor  is  it  necessary  that  the  fact  not  proved  should 
be  established  by  irrefragable  inference.  It  is  enough  if  its  existence  be  highly 
probable,  particularly  if  the  opposite  party  has  it  in  his  power  to  rebut  it  by 
evidence,  and  yet  offers  none ;  for  then  we  have  something  like  an  admission 
that  the  presumption  is  just.  It  has  been  solemnly  decided  that  there  is  no  dif- 
ference between  the  rules  of  evidence  in  civil  and  criminal  cases.  If  the  rules 
of  evidence  prescribe  the  best  course  to  get  at  truth,  they  must  be  and  are  the 
same  in  all  cases  and  in  all  civilized  countries;.  There  is  scarcely  a  criminal 
case  from  the  highest  down  to  the  lowest  in  which  courts  of  justice  do  not  act 
upon  this  principle."  His  lordship  added  :  "  It  therefore  appears  to  me  quite  ab- 
surd to  state  that  we  are  not  to  act  upon  presumption.  Until  it  pleases  provi- 
dence to  give  us  means  beyond  those  our  present  faculties  afford  of  knowing 
things  done  In  secret,  we  must  act  on  presumptive  proof  or  leave  the  worst 
crimes  unpunished.  I  admit  where  presumption  is  intended  to  be  raised  as  to 
the  corpus  delicti,  that  it  ought  to  be  strong  and  cogent."  Mr.  Justice  Holroyd 
said:  "No  man  is  to  be  convicted  of  any  crime  upon  mere  naked  presumption. 
A  light  or  rash  presumption,  not  arising  either  necessarily,  probably,  or  reason- 
ably from  the  facts  proved,  can  not  avail  in  law.  But  crimes  of  the  highest  na- 
ture, more  especially  cases  of  murder,  are  established,  and  convictions  and 
executions  take  place  frequently  thereupon  for  guilt  most  convincingly  and  con- 
clusively proved  upon  presumptive  evidence  only  of  the  guilt  of  the  party  accused  : 
and  the  well-being  and  security  of  society  must  depend  upon  the  receiving  and 
giving  due  effect  to  such  proof  These  presumptions  arising  from  those  proofs 
should,  no  doubt,  and  most  especially  in  cases  of  great  magnitude,  be  duly  and 
correctly  weighed.  They  stand  only  as  the  proofs  of  the  facts  presumed  till  the 
contrary  be  proved,  and  those  presumptions  are  either  weaker  or  stronger,  ac- 
cording as  the  party  has  or  is  reasonably  to  be  supposed  to  have  it  in  his  power  to 
produce  other  evidence  to  rebut  or  weaken  them,  in  case  the  fact  so  presumed 
be  not  true,  and  according  as  he  does  or  does  not  produce  such  contrary  evi- 
dence."    Mr.  Justice  Bayley  said:   "No  one  can  doubt  that  presumptions  may 


282  ECCLESIASTICAL  LA^Y. 

sumption.  Presiunptive  evidence  lias  been  resorted  to,  however, 
sometimes  for  the  purpose  of  testing  the  truth  of  positive  tes- 
timony, especially  that  presumption  which  arises  from  the  con- 


be  made  in  criminal  as  well  as  civil  cases.  It  is  constantly  the  practice  to  act 
upon  them,  and  I  apprehend  that  more  than  one-half  of  the  persons  con- 
victed of  crime  are  convicted  on  presumptive  evidence.  If  a  theft  has  been 
committed,  and  shortly  afterwards  the  property  is  found  in  the  possession  of  a 
person  who  can  give  no  account  of  it,  it  is  presumed  that  he  is  the  thief,  and,  so 
in  other  criminal  cases;  but  the  Question  always  is,  whether  there  is  sufficient 
premises  to  warrant  the  conclusion."  Lord  Chief-Justice  Abbott  said:  "A  fact 
must  not  be  inferred  without  premises  that  will  warrant  the  inference;  but  if  no 
fact  could  be  thus  ascertained  by  inference  in  a  court  of  law,  very  few  offenses 
would  be  brought  to  punishment.  In  a  great  proportion  of  trials,  as  they  occur 
in  practice,  no  direct  proof  that  the  party  accused  actually  committed  the  crime 
is  or  can  be  given ;  the  man  who  is  charged  with  theft  is  rarely  seen  to  break 
the  house  or  take  the  goods ;  and  in  cases  of  murder  it  rarely  happens  that  the 
eye  of  any  witness  sees  the  fatal  blow  struck,  or  the  poisonous  ingredient  poured 
into  the  cup."  The  law  on  this  point  was  very  emphatically  declared  by  Mr. 
Baron  Parke  in  Tawell's  case.  His  lordship  said :  "  The  jury  had  been  properly 
told  by  the  counsel  for  the  prosecution,  that  circumstancial  evidence  is  the  only 
evidence  which  can  in  cases  of  this  kind  lead  to  discovery.  There  is  no  way  of 
investigating  them  except  by  circumstantial  evidence.  But  providence  has  so 
ordered  the  affairs  of  men  that  it  most  frequently  happens  that  great  crimes  com- 
mitted in  secret  leave  behind  them  some  traces,  or  are  accompanied  by  some 
circumstances  which  lead  to  the  discovery  and  punishment  of  the  offender;* 
therefore  the  law  has  wisely  provided  that  you  need  not  have,  in  cases  of  this 
kind,  direct  proof;  that  is,  the  proof  of  eye-witnesses,  who  see  the  fact  and  can 
depose  to  it  on  their  oath.  It  is  impossible,  however,  not  to  say  that  it  is  the 
best  proof,  if  that  proof  is  offered  to  you  upon  the  testimony  of  men  whose  ve- 
racity you  have  no  reason  to  doubt;  but  on  the  other  hand,  it  is  equally  true  with 
regard  to  circumstantial  evidence,  that  the  circumstances  may  often  be  so  clearly 
proved,  so  closely  connected  with  it,  or  leading  to  one  result  in  conclusion, 
■that  the  mind  may  be  as  well  convinced  as  if  it  were  proved  by  eye-witnesses." 
This  being  a  case  of  circumstantial  evidence,  "I  advise  you,"  said  the  learned 
judge,  "as  I  invariably  advise  juries,  to  act  upon  a  rule  that  you  are  first  to  con- 
sider what  facts  are  clearly,  distinctly,  and  indisputably  proved  to  your  satisfac- 
tion ;  and  you  are  to  consider  whether  those  facts  are  consistent  with  any  other 
rational  supposition  than  that  the  prisoner  is  guilty  of  the  offense.  If  you  think 
that  the  facts  in  this  case  are  all  consistent  with  the  supposition  that  the  prisoner 
is  guilty,  and  can  offer  no  resistance  to  that,  except  the  character  the  prisoner 
has  borne,  and  except  the  supposition  that  no  man  would  be  guilty  of  so  atro- 
cious a  crime  as  that  laid  to  the  charge  of  tlie  prisoner,   that  can  not  much 

*Ce8  circoiistances  sont  autant  de  tonioiiis  iimcts,  que  la  Providence  semble  avoir  plaoes  au- 
tour  de  criiiio,  j)oiir  fair  jaillir  Ja  luiiiicro  do  I'ombre  dans  hiquelle  I'argciit,  s'e.st  eiibrce  d'cnse- 
■velir  le  fait  principal ;  elles  sont  coniuie  un  fanal  qui  cflaire  i'esprit  du  juge,  et  le  diiige  vers  des 
traces  certains,  qu'il  suffit  de  siiivre  pour  attelndre  a  ia  verite.    Mit  termaier  ch.  53. 


PRESU.MPTIVE  EVIDEN'CE.  283 

duct  of  the  pui'ties  at  tiic  time  of  the  transaction.  The  evidcntia 
rei,  as  it  is  sometimes  called,  will  generally  be  found  to  lead  to 
a  conclusion  incompatible  with  direct  testimony  where  such  testi- 
mony is  invented  or  exaggerated.-^  Among  the  various  cases 
where  presumptions  had  been  allowed  as  proof  of  the  corpus 
delicti,  and  which  constitutes,  to  some  extent,  an  exception  to  the 
rule, ^  may  be  mentioned  prosecutions  for  a  divorce  or  damages 

influence  your  minds;  for  we  all  know  that  crimes  are  committed,  and,  tliorefore, 
the  existence  of  the  crime  is  no  inconsistency  with  the  other  circumstances,  if 
those  circamstances  lead  to  that  result.  The  point  for  you  to  consider  is, 
whether  attending  to  the  evidence,  you  can  reconcile  the  circumstances  adduced 
in  the  evidence  with  any  other  supposition  than  that  he  has  been  guilty  of  the 
offense?  if  you  can  not,  it  is  your  bounden  duty  to  find  him  guilty;  if  you  can, 
then  you  will  give  him  the  benefit  of  such  a  supposition.  All  that  can  be  re- 
quired is  not  absolute,  positive  proof,  but  such  proof  as  convinces  you  that  the 
crime  has  been  made  out." 

^  Sex  v.  Burdett,  4  B.  &  A.  IGl  ;   Evans  v.  Evans,  4  Hag.  Con.  Rep.  105. 

^  The  same  general  principles  of  evidence  prevail  with  respect  to  the  proof 
of  crimes  of  every  description  and  of  every  element  of  the  corjnis  delicti,  and 
they  are  so  important  in  reference  to  circumstantial  evidence,  that  it  will  be  ex- 
pedient to  illustrate  their  application  at  some  length;  and  for  the  sake  of  brevity 
and  simplicity,  the  exemplifications  will  be  borrowed  from  cases  of  homicide, 
which  are  generally  those  of  the  greatest  difficulty  and  interest.  The  discovery 
of  the  body  necessarily  affords  the  best  evidence  of  the  fact  of  death  and  of  the 
identity  of  the  individual,  and  most  frequently,  also,  of  the  cause  of  death.  A 
conviction  of  murder  is,  therefore,  never  allowed  to  take  place  unless  the  body 
has  been  found  or  there  is  equivalent  proof  of  death  by  circumstantial  evidence 
leading  directly  to  that  result;  and  many  cases  have  shown  the  danger  of  a  con- 
trary practice.  Three  persons  were  executed  in  the  year  1(560  for  the  murder 
of  a  person  who  had  suddenly  disappeared,  but  about  two  years  after  reappeared. 
The  deceased  had  been  out  to  collect  his  mistress's  rents,  and  had  been  robbed 
by  highwaymen,  who  put  him  on  board  a  ship,  which  was  captured  by  Turkish 
pirates,  by  whom  he  was  sold  into  slavery.  Bex  v.  Perrys,  14  St.  Tr.  1312.  Sir 
Matthew  Hale  mentions  a  case  where  A  was  long  missing,  and  upon  strong  pre- 
sumptions B  was  supposed  to  have  murdered  him  and  to  have  consumed  the 
body  to  ashes  in  an  oven,  whereupon  B  was  indicted  of  murder,  and  convicted 
and  executed  ;  and  within  one  year  afterwards  A  returned,  having  been  sent 
beyond  sea  by  B  against  his  will.  "And  so,"  that  learned  writer  adds,  "  though 
B  justly  deserved  death,  yet  he  was  really  not  guilty  of  that  offense  for  which  he 
suffered. '  2  Hale's  P.  C.  39.  Sir  Edward  Coke  also  gives  the  case  of  a  man 
who  was  executed  for  the  murder  of  his  niece,  who  was  afterwards  found  to  be 
living.  Sir  Matthew  Hale,  on  account  of  these  cases,  says:  "I  will  never  con- 
vict any  person  of  murder  or  manslaughter  unless  the  fact  was  pi-oved  to  be 
done,  or  at  least  the  body  found."  The  judicial  history  of  all  nations  in  all  times, 
abounds  with  similar  warnings  and  exemplifications  of  the  danger  of  neglecting 
these  salutarv  cautions. 


284  ECCLESIASTICAL  LAW. 

on  the  ground  of  criminal  conversation  ;  cases  where  both  parties 
always  seek  concealment  and  are  nsuallj  successful  in  placing 
themselves  beyond  the  reach  of  direct  testimony;  and  Avhere 
courts  are  thrown,  as  the  only  recourse,  upon  such  circumstances 
as  would  lead  the  guarded  discretion  of  a  reasonable  and  just  man 
to  the  conclusion  that  the  offense  had  been  committed. 

A  sane  man — a  voluntary  agent — acting  upon  motives,  must 
be  presumed  to  contemplate  and  intend  the  necessary,  natural,  and 
probable  consequences  of  his  own  acts.  If,  therefore,  one  volun- 
tarily or  willfully  does  an  act  Avhich  has  a  direct  tendency  to  de- 
stroy another's  life,  the  natural  and  necessary  conclusion  from  the 
act  is,  that  he  intended  so  to  destroy  such  person's  life.  Thus 
Avhere  a  dangerous  and  deadly  weapon  is  used  with  violence  upon 
the  person  of  another,  as  this  has  a  direct  tendency  to  destroy 
life  or  to  do  some  great  bodily  harm  to  the  person  assailed,  the 
intention  to  take  life  or  to  do  him  some  great  bodily  harm  is  a 
necessary  conclusion  from  the  act.  ^      If  the  direct  tendency  of 

^  But  liowever  suddenly  any  act  is  done,  the  intent  to  do  it  precedes  the  doing 
of  it,  and  the  act  is  done  in  pursuance  of  the  intent  and  formed  design.  How- 
ever short  the  interval,  the  intent  necessarily  precedes.  This  is  manifest  from 
the  ordinary  case  of  a  mortal  blow  given  with  a  deadly  weapon  immediately  upon 
words  of  provocation.  Words,  however  aggravating,  not  being  considered  a 
sufficient  provocation  to  extenuate  the  offense  to  manslaughter,  it  is  uniformly 
held  to  be  murder — an  act  done  with  malice  prepense — and  it  is  not  the  less 
preconceived  because  the  act  immediately  followed  the  guilty  intent.  There  was 
obviously  no  intent  to  do  the  act  of  violence  until  the  provocntion  was  offered, 
and  although  it  is  said  the  act  of  resentment  follows  immediately,  yet  such  is 
the  rapidity  with  which  the  mind  operates  and  forms  its  purposes,  and  so  instan- 
taneously does  the  hand  execute  the  purposes  of  the  will,  that  the  moment  which 
intervenes  is  sufficient  for  the  operation  of  the  malignant  motive.  Otherwise  the 
suddenness  of  the  mortal  blow,  on  provocation  however  slight,  must  exclude  the 
im[)lication  of  malice.  But  the  law  in  such  cases  does  impute  malice  to  the  act, 
liccause  it  does  not  consider  the  weight  of  the  provocation  such  as  naturally  to 
arouse  so  violent  a  resentment;  and  as  an  act  so  violent  and  cruel  can  not  be 
attributed  to  a  natural  resentment  incident  to  the  infirmity  of  human  nature — 
<  n  which  ground  alone  it  can  extenuate  the  homicide—  it  is  necessarily  attributed 
to  malignity  of  heart. 

Malice,  in  the  definition  of  murder,  is  im])\ited  to  an  act  done  willfully, 
viulo  animo,  an  act  wrong  in  itself,  injurious  to  another,  and  for  which  there  is 
no  a[)parent  justification  or  excuse.  Such  justification  or  excuse  must  depend  on 
the  existence  of  facts,  and  such  facts  must  be  i)roved  and  found  in  order  to  be  the 
basis  of  any  ju<li(;ial  decision.  The  willful  and  voluntary  act  of  destroying  the  life 
of  another  is  an  act  wr(;iig  and  unlawful  in  itself,  injtirious  in  the  highest  degree  to 


^RESU^rPTIVE  evidence.  285 

the  willful  act   is  to   do   another   some    great   bodily   harm,    and 
death  in  fact  follows  as  a  natural  and  probable  consequence  of 


the  rights  of  another,  being  the  greatest  wrong  which  can  be  done  to  him,  contrary 
to  the  laws  of  nnture  as  well  as  society,  and  in  violation  of  the  plainest  dictates  of 
conscience.  The  natural  and  necessary  conclusion  and  inference  from  such  an  act 
willfully  done  without  apparent  excuse  are,  that  it  was  done  malo  animo,  in  pursu- 
ance of  awrongful,  injurious  purpose,  previously,  though  perhaps  suddenly,  formed, 
and  is  therefore  "  a  homicide  with  malice  aforethought,"  which  is  the  true  definition 
of  murder.  And  it  appears  to  us  that  this  is  not  a  forced,  arbitrary,  technical,  or 
artificial  presumption  of  law,  but  a  natural  and  necessary  inference  from  the 
fact.  This  will  be  more  apparent  from  considering  what  malice,  in  legal  con- 
templation, is.  and  how  it  is  inferred  from  illegal  and  wrongful  acts  in  other  cases 
of  crimes  and  offenses  of  less  magnitude. 

Malice,  although  in  its  popular  sense  it  means  hatred,  ill-will,  or  hostility  to 
another,  yet,  in  its  legal  sense,  has  a  very  diflerent  meaning,  and  characterizes 
all  acts  done  with  an  evil  disposition,  a  wrong  and  unlawful  purpose  or  motive, 
the  willful  doing  of  an  unlawful  and  injurious  act  without  lawful  excuse. 

Mr.  Justice  Bayley,  in  giving  the  opinion  of  the  Court  in  Bromage  v. 
Prosser,  4  Barn.  &  Cress.  255,  though  on  a  sul)ject  widely  different  from  homi- 
cide, thus  gives  the  legal  description  of  malice  In  contradistinction  to  the  popular 
sense  in  which  the  term  is  commonly  used:  "Malice,  in  common  acceptation, 
means  ill-will  against  a  person;  but  in  its  legal  sense  it  means  a  wrongful  act 
done  intentionally  without  just  cau.se  or  excuse.  If  I  give  a  perfect  stranger 
a  blow  likely  to  produce  death,  I  do  it  of  malice  because  I  do  it  intentionally  and 
without  just  cause  or  excuse.  If  I  maim  cattle  without  knowing  whose  they  are, 
if  I  poison  a  fishery  without  knowing  the  owner,  I  do  it  of  malice,  because  it  is 
a  wrongful  act  and  done  intentionally.  If  I  am  arraigned  of  felony  and  will- 
fully stand  mute,  I  am  said  to  do  it  of  malice,  because  it  is  intentional  and  with- 
out just  cause  or  excuse."  This  is  sometimes  called  malice  in  law  in  contradis- 
tinction from  malice  in  fact,  because  the  law  draws  the  inference  from  the  fact. 
So  in  civil  actions  and  'prosecutions  for  minor  offenses,  some  authorities  in  our 
own  books,  and  in  recent  cases,  illu.strate  this  legal  doctrine  of  malice.  In  Wills 
V.  Koyes,  12  Pick.  32-1,  the  Court  charged  the  jury  that  legal  malice  might  differ 
from  malice  in  the  common  acceptation  of  the  term;  that  to  do  a  wrong  or  un- 
lawful act,  knowing  it  to  be  such,  constituted  legal  malice.  This  was  affirmed 
bv  the  whole  Court,  who  say  that  whatever  is  done  "with  a  willful  disregard  of 
the  rights  of  others,  whether  it  be  to  compass  some  unlawful  end  or  some  lawful 
end  by  unlawful  means,  constitutes  legal  malice."  So  in  a  more  recent  case — 
Chmmomcealih  v.  SneUmg—]5  Pick.  340— the  Court,  after  noticing  the  legal 
and  popular  meaning  of  the  term  "malice,"  say:  "In  a  legal  sense,  any  act 
done  willfully  and  purposely  to  the  prejudice  and  injury  of  another  which  is  un- 
lawful is,  as  against  that  person,  malicious."  See,  also,  Foster's  Crown  Law,  256; 
Bussell  on  Crimes  (1st  ed.),  614,  note. 

These  instances,  taken  from  cases  having  no  analogy  to  the  crime  of  homi- 
cide, are  adduced  to  show  that  the  presumption  of  malice,  from  a  wrongful  and 
injurious  act  willfully  done,  when  applied  to  homicide  is  not  technical  or  artifi- 


286  ECCLESIASTICAL  LAW. 


the  act,  it  is  presumed  that  he  intended  such  consequence ;  hence 

clal,  or  invented  for  the  particular  occasion,  but  is  the  result  of  a  mode  of  legal 
reasoning  which  is  of  general  application. 

The  same  doctrine  is  laid  down  as  the  undoubted  law  of  England  in  a  recent 
work  of  good  authority,  frequently  republished  and  in  extensive  use  in  this 
country  (2  Stark.  Ev.  903),  in  which  the  writer  states  the  general  doctrine  I 
have  been  stating,  that  "malicious"  imports  nothing  more  than  the  wicked 
and  perverse  disposition  with  which  the  party  committed  the  act;  and  he  illus- 
trates the  general  proposition  by  a  reference  to  this  presumption  of  malice  in  the 
case  of  homicide.  His  words  are,  "  The  application  of  the  term  '  malicious '  is 
strongly  illustrated  in  the  case  of  homicide  where  the  malus  animus,  which 
brings  the  offense  within  the  denomination  of  willful  murder  is  frequently  to  be 
collected  by  the  Court  as  a  matter  of  law  from  the  circumstances  of  the  case, 
and  is  not  an  inference  of  fact  to  be  drawn  by  the  jury,  as  it  must  necessarily  be 
whenever  malice  consists  in  the  specific  intention  actually  existing  in  the  mind 
of  the  agent  at  the  time  of  the  act."  And  it  is  remarkable  that  Mr.  Greenleaf, 
whose  recent  treatise  on  evidence  is  to  be  regarded  rather  as  a  discussion  and 
statement  of  the  grounds  and  the  principles  of  the  theory  of  proof  in  general 
than  as  a  detail  of  the  rules  of  evidence,  puts  forth  this  same  presumption  of 
malice,  not  as  an  arbitrary  and  technical  rule,  but  as  a  natural  inference,  drawn 
by  a  fair  course  of  reasoning  from  the  laws  of  nature,  tlie  experienced  course  of 
human  conduct  and  affairs,  and  the  connection  usually  found  to  exist  between 
certain  things,  and,  in  this  respect  standing  on  the  same  footing  as  inferences 
from  the  known  laws  of  nature.  He  adds,  "The  general  doctrines  of  presump- 
tive evidence  are  not,  therefore,  peculiar  to  municipal  law,  but  are  shared  by  it 
in  common  with  other  departments  of  science.  Thus,  the  presumption  of  a 
malicious  intent  to  kill,  from  the  deliberate  use  of  a  deadly  Aveapon,  and  the  pre- 
sumption of  aquatic  habits  in  an  animal  with  webbed  feet,  belong  to  the  same 
philosophy,  differing  only  in  the  in.stance  and  not  in  the  principle  of  its  applica- 
tion." 1  Greenleaf  on  Ev.  §  14.  He  then  distinguishes  between  those  that  are 
conclusive  and  not  capable  of  being  rebutted  by  proof,  and  those  which  are  dis- 
putable and  may  be  overcome  by  opposing  proof  Of  the  latter  the  following  is 
the  illustration:  Thus,  on  a  charge  of  murder,  malice  is  presumed  from  the  fact 
of  killing  unaccompanied  with  circumstances  of  extenuation,  and  the  burden  of 
disproving  the  fact  is  thrown  on  the  accused.  §  H4.  I  shall  have  occasion  here- 
after to  state  more  fully  that  the  term  "deliberate,"  as  used  in  the  first  of  these 
passages,  does  not,  in  its  legal  acceptation,  so  much  import  an  act  done  after 
time  for  reflection  as  a  voluntary  act — an  act  done  upon  motives  of  purpose  and 
design,  in  contradistinction  to  acts  done  in  the  heat  of  passion,  a  paroxysm  of 
resentment,  in  which  reason  and  choice,  for  the  moment,  have  no  agency.  The 
books  constantly  speak  in  this  connection  of  a  deliberate  act,  however  sudden; 
whereas  if  deliberation  implied  time  and  reflection,  a  deliberate  act  could  never 
be  sudden.  So  it  has  been  held  in  Pennsylvania  under  a  statute  which  requires 
premeditation  to  constitute  murder  in  the  first  degree,  that  the  intention  to  kill, 
tliough  immediately  executed,  is  still  tlie  true  criterion  of  the  crime,  and  that 
the  intention  of  the  jiarty  can  only  be  collected  from  his  words  and  actions. 
Bepublica  v.  Mulatto  Bob.  4  Dall.  1  Ki.     And  in  various  other  cases  under  the 


PRESUMPTIVE  EVIDENCE.  287 

he  must  stand  legally  responsible  for  it.      So  the  deliberate  publi- 

statute  it  has  been  decided  tliat  wliore  it  a]>pears  from  the  whole  evidence  that 
the  crime  was,  at  the  moment,  dehborately  or  intentionally  executed,  the  kiliini,' 
is  murder.  Commoniveallh  v.  Davgheriy^  1  Browne,  Ajipx.  xviii.;  Pennsyl- 
vania V.  M' Fall,  Addison,  257. 

I  will  add  a  few  other  authorities,  to  show  that  the  inference  of  malice  from 
unlawful  acts  is  not  an  artificial  rule  of  law,  but  a  natural  inference,  legitimately 
deduced  from  fiicts  admitted  or  proved,  and  that  it  is  not  peculiar  to  the  law  of 
homicide,  but  prevails  in  all  other  departments  of  the  criminal  law.  In  The  King 
V.  Dixon,  3  M.  &  S.  11,  the  defendant  was  indicted  for  delivering  bread  mixed  with 
unwholesome  and  noxious  materials  as  good  and  wholesome  bread  for  the  use 
of  the  children  of  the  Royal  Military  Asylum  at  Chelsea.  There  was  a  motion 
in  arrest  for  the  cause,  among  otlier  things,  that  the  indictment  did  not  show 
that  the  defendant  intended  to  injure  the  children's  health;  whereupon  Lord 
EUenborough  said  "it  was  a  universal  principle  that  when  a  man  is  charged  with 
doing  an  act  of  which  the  probable  consequence  may  be  highly  injurious,  the  in- 
tention is  an  inference  of  law  resulting  from  the  doing  of  the  act;  and  here  it 
M'as  alleged  that  he  delivered  the  loaves  for  the  use  and  supply  of  the  children." 
In  The  King  v.  Philip,  1  Mood.  Cr.  Cas.  263,  the  prisoner  was  charged  witli 
burning  a  ship  of  which  he  was  part  owner,  the  primary  purpose  being  to  de- 
fraud the  underwriters;  but  the  evidence  not  being  produced  to  prove  the  fact 
of  insurance,  that  intention  was  not  proved.  But  there  were  counts  charging 
the  accused  with  burning  the  ship,  of  which  he  was  also  master,  with  an  intent 
to  injure  the  other  part  owners,  and  the  case  proceeded  on  them.  It  was  argued 
by  the  counsel  for  the  prisoner  that  the  intention  to  defraud  his  co-proprietors  was 
not  proved,  but  that  a  different  intent  was  shown.  But  it  was  answered  and 
resolved  by  the  Court,  that  voluntarily  setting  fire  to  the  ship  and  destroying  her, 
was  a  willful  act;  that  it  tended  to  a  destruction  of  the  property  of  the  others  ; 
and  that  it  was  a  necessary  inference  of  law  that  he  intended  to  injure  them. 
The  case  of  The  King  v.  Farrington,  Russ.  &  Ry.  207,  is  to  the  same  effect. 

There  is  a  very  recent  case  to  the  same  point — The  Queen  v.  Hill,  8  Car.  & 
P.  274.  On  the  trial  of  an  indictment  before  Mr.  Baron  Alderson,  the  prisoner 
was  charged  with  uttering  a  forged  bill  of  exchange,  with  intent  to  defraud 
Samuel  Minor.  The  counsel  for  the  prisoner,  in  addressing  the  jury,  submitted 
that  on  the  evidence  they  ought  to  negative  the  intent  to  defraud,  because  there 
■was  evidence,  as  he  contended,  that  the  prisoner  intended  himself  to  take  up  the 
bill.  The  learned  judge  told  the  jury  that  the  questions  for  them  were  whether 
the  defendant  uttered  the  bill  as  a  true  bill  to  Minor,  and  whether,  if  he  did  so, 
he  knew  when  he  did  so  that  it  was  forged;  and  he  instructed  them,  that  if  they 
should  find  these  two  facts,  then  they  ought  to  find,  as  a  necessary  consequence 
of  law,  that  the  prisoner  meant  to  defraud.  "A  man,"  said  he,  "  mu.st  be  taken 
to  intend  the  consequences  of  his  own  acts,  and  must  intend  to  defraud  if  he 
pays  another  a  false  note  instead  of  a  real  one."  And  this  decision  was  affirmed 
by  the  fifteen  judges.     See  also  The  King  v.  Sheppard,  Russ.  &  Ry.  169. 

That  one  shall  be  presumed  to  intend  the  results  and  natural  consequences 
of  his  own  acts  was  decided  in  the  remarkable  case  of  The  King  v.  Woodhurne 
&  Coke,  in  1722,  referred  to  in  most  of  the  books  on  crown  law,  and  reported  at 


288  ECCLESIASTICAL  LAW. 


cation  of  a  libel,  or  the  uttering  of  slanderous  words  known  to  be 
false  raises  a  presumption  of  malice.  -^ 

large  in  IG  Howell's  State  Trials,  54.  The  indictment  was  found  on  the  Coven- 
try Act,  charging  the  accused  with  lying  in  wait,  and  attacking  Edward  Crisp, 
with  a  sharp  and  heavy  instrument  called  a  bill,  with  intent  to  maim  and  disfig- 
urg  him ;  and  proof  of  this  intent  was  necessary  to  bring  the  case  within  the 
act.  The  proof  was  that  they  conspired  to  murder  him ;  struck  him  repeated 
blows  with  a  hedge  bill,  in  his  face  and  on  his  head,  by  which  his  nose  was  slit, 
and  left  him  for  dead;  but  that  he  afterwards  recovered.  The  ground  taken  by 
Coke  was,  that  the  act  was  done  not  with  an  intent  to  disfigure,  but  to  murder. 
But  it  was  answered  and  resolved  that,  striking  a  man  in  the  face  with  such  a 
weapon,  with  the  ultimate  purpose  of  murdering  him,  had  a  direct  tendency  to 
maim  and  disfigure  him,  and,  therefore,  he  must  have  intended  that  result;  and 
he  was  convicted  and  executed.      CommonweaUh  v.  York,  9  Metcalf,  108. 

1  By  the  Court.  Although  the  evidence  rejected  does  not  seem  to  be  very 
material,  yet  as  the  fact  offered  to  be  proved  might,  at  the  time  of  the  speak- 
ing of  the  words,  have  had  some  influence  in  misleading  the  defendant,  he  had 
a  right  to  prove  it  for  the  purpose  of  reducing  the  malice. 

There  is  a  difference  between  a  justification  and  an  excuse.  The  one  goes 
to  the  right  of  recovery,  the  other  to  the  amount  to  be  recovered.  For  the 
purpose  of  showing  malice  the  plaintiff  may  prove  the  speaking  of  words  not 
charged,  if  they  be  not  actionable;  and  with  a  view  of  extenuating  malice,  the 
defendant  may  prove,  under  the  general  issue,  any  circumstance  connected  with 
the  transaction  tending  to  show  that  he  had  probable  ground  for  believing  the 
truth  of  the  words. 

In  estimating  the  damage,  the  degree  of  malice  is  always  to  be  considered. 
Any  circumstance,  therefore,  tending  to  show  that  the  defendant  spoke  the 
words  under  a  mistake,  or  that  he  had  some  reason  to  believe  they  were  true,  is 
entitled  to  consideration,  and  is  proper  evidence  to  be  received  in  mitigation. 
What  effect  this  evidence  might  have  we  know  not,  nor  is  it  necessary  to  know. 
We  are  satisfied  it  was  legal,  and  that  the  defendant  had  a  right  to  use  it  for  the 
purpose  for  which  it  was  offered.      Wilson  v.  Apple,  3  Ohio,  270. 

According  to  Mansfield,  C.  J.,  a  repetition  of  the  same  words  or  the  same 
libel  may  be  proved,  to  show  that  the  first  was  not  heedless  but  malicious.  Bod- 
well  V.  Siwan,  ?>  Pick.  H78.  See  also  Kean  v.  M' Lavghlin,  2  Scrg.  &  Rawl,  4G0; 
Macleod  v.  Waldey,  ?>  Carr.  &  Payne,  311 ;  Shock  v.  M'  Chesim/,  2  Yeat.es,  '1 73; 
M'Almont  v.  M'  Clellaii,  14  Serg.  &  Ilawle,  359 ;  3IUler  v.  Kerr,  2  M'Cord.  285; 
Eccles  V.  Shackleford,  1  Littell,  35 ;  Dtivall  v.  Griffith,  2  Har.  &  Gill,  30 ;  2 
Starkie's  Ev.  465. 

Where  words  were  given  in  evidence  by  the  plaintiff,  in  order  to  prove  a 
malicions  intent  by  tlie  defendant,  which  were  not  stated  in  the  declaration,  it 
was  held  that  the  defendant  might  prove  the  truth  of  such  words.  Wai'ne  v. 
Shadwell,  2  Stark.  R.  457. 

In  Kentucky  the  general  currency  of  a  report  is  not  a  jn.stification  of  slan- 
der; but  evidfuce  of  the  general  reputation  is  admissible  in  extcMiUHtion  of  mal- 
ice and  in  mitigation  of  damages.      Calloivay  v.  Middlcton,  2  Marshall,  372. 


PRESUMPTIVE  EVIDENCE.  289 

It  is  said  tliat  the  records  of  courts  of  justice  are  conclusively 
presumed  to  have  been  correctly  made — res  jiidicatce  ])ro  verifate 
accipiuntur,  and  a  party  to  the  record  is  presumed  to  have  been 
interested  in  the  suit;  but  this  presumption  arising  in  favor  of 
records,  and  judicial  proceedings  is  subject  to  this  that  the  judg- 
ment mav  be  inquired  into  in  all  instances  where  there  is  a  want 
of  jurisdiction  in  the  court  rendering  it.^ 

^  The  Act  of  Congress,  which  was  passed  2Gth  of  May,  ITI^O,  after  provid- 
ing for  the  mode  of  authenticating  the  acts,  records,  and  judicial  proceedings  of 
the  States,  declares:  "and  the  said  records  and  judicial  proceedings,  autiienti- 
cated  as  aforesaid,  shall  have  such  faith  and  credit  given  to  them  in  evevy  court 
within  the  United  States,  as  they  have  by  law  or  usage  in  the  courts  of  the  States 
from  whence  the  said  records  are  or  shall  be  taken."  It  has  been  supposed  that 
this  act,  in  connection  with  the  Constitutional  provision  which  it  was  intended 
to  carry  out,  had  the  effect  of  rendering  the  judgments  of  each  State  equivalent 
to  domestic  judgments  in  every  other  State,  or,  at  least  of  giving  to  them  in 
every  other  State  the  same  effect,  in  all  respect,  which  they  have  in  the  State 
where  thev  were  rendered.  And  the  language  of  this  Court  in  31111.9  v.  Diiryee, 
1  Cranch,  484,  seemed  to  give  countenance  to  this  idea.  The  Court  held  in  that 
case  that  the  act  gave  to  the  judgments  of  each  State  the  same  conclusive  effect 
as  records  in  all  the  States,  as  they  had  at  home ;  and  that  nil  debet  could  not 
be  pleaded  to  an  action  bi'ought  thereon  in  another  State.  This  decision  has 
never  been  departed  from  in  relation  to  the  general  effect  of  such  judgments 
where  the  questions  raised  were  not  questions  of  jurisdiction.  But  where  the 
jurisdiction  of  the  Court  which  rendered  the  judgment  has  been  assailed,  quite 
a  different  view  has  prevailed.  Justice  Story,  who  pronounced  the  judgment  in 
the  case  o(^  ^liUs  v  Dtirf/ee,  in  his  Commentary  on  the  Constitution  (Sec.  1313), 
after  stating  the  general  doctrine  established  by  that  case  with  regard  to  the  con- 
clusive effect  of  judgments  of  one  State  in  every  other  State,  adds :  "  But  this 
does  not  prevent  an  inquiry  into  the  jurisdiction  of  the  Court  in  which  the  orig- 
inal judgment  was  given,  to  pronounce  it ;  or  the  right  of  the  State  itself,  to  ex- 
ercise authority  over  the  person  or  the  subject  matter.  The  Constitution  did  not 
mean  to  confer  [upon  the  States]  a  new  power  or  jurisdiction,  but  simply  to 
regulate  the  effect  of  the  acknowledged  jurisdiction  over  persons  and  things 
within  their  territory."  In  tlie  Commentary  on  the  Conflict  of  Laws  (Sec.  609), 
substantially  the  same  remarks  are  repeated  with  this  addition  :  "It  [the  Con,>ti- 
tution]  did  not  make  the  judgments  of  other  States  domestic  judgments  to  all 
intents  and  purposes,  but  only  gave  a  general  validity,  faith,  and  credit  to  them, 
as  evidence.  No  execution  can  issue  on  such  judgments  v/ithout  a  new  suit  in 
the  tribunals  of  other  States.  And  they  enjoy  not  the  right  of  priority  or  lien 
which  they  have  in  the  State  where  they  are  pronounced,  but  that  only  which  the 
lex  fori  gives  to  them  by  its  own  laws  in  their  character  of  foreign  judgments." 
Many  cases  in  the  State  Courts  are  referred  to  by  Justice  Story  in  support  of 
this  view.  Chancellor  Kent  expresses  the  same  doctrine  in  nearly  the  same  words, 
in  a  note  to  his  Commentaries,  Vol.  i,  p.  281.     See  also  Vol.  ii,  '.'5,  note  and 


290  ECCLESIASTICAL  LAW. 


After  a  verdict,  it  will  be  presumed  that  tliose  facts,  without 
proof  of  which  the  verdict  would  have  been  different,  have  been 
proved,  provided  the  record  contains  terms  sufficiently  general  to 

cases  cited.  "The  doctrine  in  Mills  v.  Dimjee"  says  he,  "is  to  be  taken  with 
the  qualification  that  in  all  instances  the  jurisdiction  of  the  court  renderin<,^  the 
judgment  may  be  inquired  into,  and  the  plea  of  nil  debet  will  allow  the  defend- 
ant to  show  that  the  court  had  no  jurisdiction  over  his  person.  It  is  only  when 
tlie  jurisdiction  of  the  court  in  another  State  is  not  impeached,  either  as  to  the 
subject  matter  or  the  person,  that  the  record  of  the  judjrment  is  entitled  to  full 
faith  and  credit.  The  court  must  have  had  jurisdiction,  not  only  of  the  cause 
but  of  the  parties,  and  in  that  case  the  judgment  is  final  and  conclu.sive."  The 
learned  commentator  adds,  however,  this  qualifying  remark:  "A  special  plea  in 
bar  of  a  suit  on  a  judgment  in  another  State,  to  be  valid,  must  deny  by  positive 
averments,  every  fact  which  would  go  to  show  that  the  court  in  another  State 
had  jurisdiction  of  the  person  or  of  the  subject  matter." 

In  the  case  of  Hampfrm  v.  M'  Coiinel,  3  Wheaton,  231,  this  Court  reiterated 
the  doctrine  of  MiUs  v.  Duri/ee,  that  "  the  judgment  of  a  State  court  slionld 
have  the  same  credit,  validity,  and  effect  in  every  other  court  of  the  United 
States  which  it  had  in  the  State  courts  where  it  was  pronounced,  and  that  what- 
ever pleas  would  be  good  to  a  suit  therein  in  such  State,  and  none  other,  could 
be  pleaded  in  any  court  in  the  United  States.''  But  in  the  subsequent  case  of 
M' Elmnyle  v.  Cohen,  13  Peters.  312,  the  Court  explained  that  neither  in  3IiNs  v. 
Duryee,  nor  in  Hampton  v.  M'  Connel,  was  it  intended  to  exclude  pleas  of 
avoidance  and  satisfaction,  such  as  payment,  statute  of  limitations,  etc.,  or  jileas 
denying  the  jurisdiction  of  the  court  in  which  the  judgment  was  given,  and 
quoted  with  approbation  the  remark  of  Justice  Story,  that  "the  Constitution  did 
not  mean  to  confer  a  new  power  of  jurisdiction,  but  simply  to  regulate  the  effect 
of  the  acknowledged  jurisdiction  over  persons  and  things  within  the  State." 
The  same  views  were  repeated  in  The  United  Slates  v.  Arredonde,  G  Peters,  (191 ; 

VorJiees  v.  Bank  of  the  United  States,  10  Peters,  475;  Wilcox  v.  Jackson,  13 
Peters,  511;  Shrivei-'s  Lessee  v.  Lynn,  2  Howard,  5f),  fiO;  Hickeys  T^essee  v. 
Stewart,  3  Howard,  762;  and  Williamson  v.  Berry,  8  Howard,  540.  In  the 
last  case  the  authorities  are  reviewed  and  the  Court  say,  "  The  jurisdiction  of 
any  court  exercising  authority  over  a  subject  may  be  inquired  into  in  every 
other  court  when  the  proceedings  in  the  former  are  relied  upon  and  brought 
before   the   latter  by  a  party  claiming   the  benefit  of  such   proceedings,"  and 

"the  rule  prevails  whether  the  decree  or  judgment  has  been  given  in  a  court 
of  admiralty,  chancery,  ecclesiastical  court,  or  court  of  common  law,  or  whether 
the  point  ruled  has  arisen  under  the  laws  of  nations,  the  practice  in  chancery  or 
tlie  mutiicipal  laws  of  States." 

But  it  must  1)e  admitted  that  no  decision  has  ever  been  made  on  the  precise 
point  involved  in  the  case  before  us,  in  wliich  evidence  was  admitted  to  contra- 
dict the  record  as  to  jurisdictional  facts  asserted  therein,  and  especially  as  to 
facts  stated  to  have  been  passed  ujiun  by  the  Court.  But  if  it  is  once  conceded 
that  the  validity  of  a  judgment  may  l)e  attacked  collaterally  by  evidence  showing 
that  the  Court  liad  no  jurisdiction,  it  is  not  perceived  how  any  allegation  con- 


PRESUMPTIVE  EVIDENCE.  291 

compi'eliend  tliem  in  fair  and  i-easonaljle  intendment.  Upon  tlic 
same  principle  a  specialty  or  commercial  paper  is  presumed  to 
have  been  made  upon  a  good  consideration.  So  a  court  is  pre- 
sumed to  liavc  jurisdiction  of  the  person  and  of  the  cause  of 
action,  even  though  the  court  entertaining  such  presumption  will 
not  take  notice,  ex  officio,  of  the  laws  of  the  State  or  government 
conferring  such  jurisdiction.^ 

tained  in  the  record  itself,  however  strongly  made,  can  affect  the  right  to  question 
it.  The  very  object  of  the  evidence  is  to  invalidate  the  paper  as  a  record.  If 
tliat  can  be  successfully  done  no  statements  contained  therein  have  any  force. 
If  any  such  statements  could  be  used  to  prevent  inquiry,  a  slight  form  of  word 
might  always  be  adopted  so  as  effectually  to  nullify  the  right  of  such  inquiry. 
Recitals  of  this  kind  must  be  regarded  like  asseverations  of  good  faitli  in  a 
deed,  which  avail  nothing  if  the  instrument  is  shown  to  be  fraudulent.  The  rec- 
ords of  the  domestic  tribunals  of  England  and  some  of  the  States,  it  is  true,  are 
held  to  impart  absolute  verity  as  well  in  relation  to  jurisdictional  as  to  other 
facts,  in  all  collateral  proceedings.  Public  policy  and  the  dignity  of  the  courts 
are  supposed  to  require  that  no  averment  shall  be  admitted  to  contradict  the 
record.     But,  as  we  have  seen,  that  rule  has  no  extra  territorial  force. 

It  may  be  observed  that  no  courts  have  more  decidedly  affirmed  the  doctrine 
that  want  of  jurisdiction  may  Ije  shown  by  proof  to  invalidate  the  judgments  of 
courts  of  other  States  than  have  the  courts  of  New  Jersey.  The  subject  was 
examined  and  the  doctrine  affirmed  after  a  careful  review  of  the  cases,  in  the 
case  of  Moulin  v.  Insurance  Company,  in  4  Zabriskie,  222,  and  again  in  the 
same  case  in  1  Dutcher,  57;  and  in  Price  v.  Ward,  1  Dutcher,  225;  and,  as 
lately  as  November,  1870,  in  the  case  of  Mackaij  ei  al.  v.  Gordon  et  al.  34  New 
Jersey,  286.  The  judgment  of  Chief-Justice  Besley  in  the  last  case  is  an  able 
exposition  of  the  law.  It  was  a  case  similar  to  that  of  D' Arcy  v.  Keichvm,  in 
11  Howard,  being  a  judgment  rendered  in  New  York,  under  the  statutes  of  that 
State  before  referred  to,  against  two  persons,  one  of  whom  was  not  served  with 
process.  "  Every  independent  government,"  says  the  Chief-Justice,  "  is  at  liberty 
to  prescribe  its  own  methods  of  judicial  process  and  to  declare  by  what  forms 
parties  shall  be  brought  before  its  tribunals.  But  in  the  exercise  of  this  power, 
no  government,  if  it  desires  extra  territorial  recognition  of  its  acts,  can  violate 
those  rights  which  are  universally  esteemed  fundamental  and  essential  to  society. 
Thus,  the  judgment  by  the  court  of  a  State  against  a  citizen  of  such  State  in  his 
absence  and  without  any  notice,  express  or  implied,  would,  it  is  presumed,  be  re- 
garded in  every  external  jurisdiction,  as  absolutely  void  and  unenforceable.  Such 
would  certainly  be  the  case  if  such  judgment  was  so  rendered  against  the  citizen 
of  a  foreign  State." 

On  the  whole,  we  think  it  clear  that  the  jurisdiction  of  the  court  by  which  a 
judgment  is  rendered  in  any  State  may  be  questioned  in  a  collateral  proceeding 
in  another  State,  notwithstanding  the  provision  of  the  fourth  Article  of  the 
Constitution  and  the  law  of  1790,  and  notwithstanding  the  averments  contained 
in  the  record  of  the  judgment  itself.     18  Wallace,  461  ;    Thompson  y.  Whitman. 

^  Scales,  C.  J.,  delivered  the  following  opinion  on  this  question,  namely:  The 


292  ECCLESIASTICAL  LAW. 

There  is  another  class  of  presumptions  that  may  be  properly 
considered  in  this  connection,  to  wit :  presumptions  that  are  en- 
tertained in  favor  of  intermediate  proceedings,  where  the  princi- 
pal facts  are  provable  by  record  or  judicial  registration;  the 
maxim  in  such  case  being  probatis  extremis  prcesumitur  media, 
the  meaning  of  which  is,  that  it  will  be  presumed  that  all  of  the 
intermediate  proceedings  have  been  lost  from  lapse  of  time  ;  but 
this  rule  does  not  extend  to  records  and  public  documents  wliich 
are  supposed  always  to  remain  in  the  possession  of  the  proper 
custodian.-^      Neither  does  the  presumption  prevail  Avhere  special 


plaintiff  was  sued  before  a  justice,  and  judgment  rendered  against  him  on  appeal 

to  the  Circuit  Court  for  $79.62,  "for  his as  per  the  verdict,"  etc.,  which 

had  omitted  to  specify  whether  they  found  debt  or  damages.  The  proof  shown 
in  support  of  this  finding  was  the  exemplification  of  a  record  of  a  Court  of  Com- 
mon Pleas  in  Knox  County,  Ohio,  commenced  before  a  justice  of  the  peace 
there,  before  whom  plaintiff  appeared  and  defended,  and  afterward  taken  by  ap- 
peal to  the  Common  Pleas,  where  defendant  here  recovered  a  judgment  for  $00. 

The  first  and  most  important  question  presented  is  the  plaintiff's  right  to  go 
behind  his  judgment  into  the  original  cause  of  action,  or  is  he  concluded  by  his 
judgment?  The  act  of  Congress  under  the  Constitution  has  given  this  judg- 
ment the  same  force  and  effect  as  evidence  in  every  State  as  it  has  in  Ohio 
where  rendered.     Act  26  May,  1790  ;   Rev.  Stat.  1845,  p.  624. 

While  judgment  rendered  without  duo  notice  or  appearance  is  a  nullity 
[Bimeler  v.  Dawson  et  al.  4  Scam.  R.  530),  or  without  jurisdiction  of  the  person 
or  cause  of  action,  yet  where  the  court  has  jurisdiction  of  both,  the  judgment  will 
be  conclusive  upon  the  parties.  And  this  is  as  applicable  to  foreign  as  to  do- 
mestic judgments. 

The  doubt  did  not  arise  as  to  the  principle  of  law,  but  whether  the  facts  pre- 
sented a  case  for  its  application  to  cut  off  plaintiff  from  denying  the  original 
cause  of  indebtedness.  We  are  of  the  opinion,  that  the  record  is  conclusive  upon 
the  plaintiff.  The  plaintiff  was  personally  served,  and  appeared  before  the  justice 
of  the  peace  in  Ohio.  Although  no  further  service  or  appearance  is  shown  in 
the  Common  Pleas  to  which  the  cause  was  taken  by  appeal,  and  admitting  that 
plaintiff  could  have  shown  that  there  was  neither,  yet  the  judgment  rendered  by 
the  Common  Pleas  we  think  prima  fade  evidence  of  jurisdiction  by  appeal,  and 
.the  plaintiff  should  rebut  this  presumption  by  showing  that  the  laws  of  Ohio  re- 
quired another  service  to  the  Common  Pleas.  Hortony.  Ciitchjield,  18  Ills.  135. 

'  Morton,  Judge,  delivered  the  ofiinion  of  the  Court:  As  the  records  are  ap- 
parently entire  and  no  loss  of  any  of  the  i)a])ers  in  the  probate  office  is  suggested, 
we  can  not,  even  after  the  lajise  of  more  than  thirty  years,  presume  that  any 
decree  passed  or  that  any  notice  was  given  which  does  not  appear.  Ilathauunj 
V.  Clark,  5  Mass.  491.  See  also.  Brown  v.  Wood,  17  Mass;.  68;  Shirley  v. 
Lvnenburr/,  11  Mass.  379;  Oliver  v.  liondlet,  13  Mass.  239;  Armstrong  v. 
V.  Short  i  Rullin,  11. 


PRESUMPTIVE  EVIDENCE.  293 

powers,  conferred  upon  a  court  of"  general  jurisdiction,  arc  brought 
into  action  in  a  special  manner  not  according  to  the  course  of  the 
connnon  law ;  nor  Avhere  the  general  powers  of  the  court  are 
exercised  over  a  class  not  Avithin  its  ordinary  jurisdiction.  Upon 
the  performance  of  prescribed  conditions,  a  presumption  of  juris- 
diction will  not  attend  the  judgment  of  the  court,  and  the  facts 
essential  to  the  exercise  of  the  special  jurisdiction  must,  in  such 
cases,  appear  upon  the  record.  ^ 

^  When,  therefore,  by  legislation  of  a  State  constructive  service  of  process  by 
publication  is  substituted  in  place  of  personal  citation,  and  the  court,  upon  such 
service,  is  authorized  to  proceed  against  the  person  of  an  absent  party  not  a 
citizen  of  the  State  nor  found  within  it,  every  principle  of  justice  exacts  a  strict 
and  literal  compliance  with  the  statutory  provisions.  And  such  has  been  the 
ruling,  we  believe,  of  the  courts  of  every  State  in  the  Union.  It  has  been  so 
held  by  the  Supreme  Court  of  California  in  repeated  instances.  In  Jordan  v. 
GihJin  (12  California,  100),  decided  In  1859,  service  by  publication  was  at- 
tempted, and  the  Court  said  that  it  had  already  held,  "in  proceedings  of  this 
character,  where  service  is  attempted  by  modes  different  from  the  course  of  the 
common  law,  that  the  statute  must  be  strictly  pursued  to  give  jurisdiction.  A  con- 
trary course  would  encourage  fraud  and  lead  to  oppression."  In  Rkketson  v. 
Richardson  (2(5  California,  149),  decided  in  18G4,  the  Court,  referring  to  the  sec- 
tions of  the  statute  authorizing  notice  by  pubhcation,  said  :  "  These  sections  are 
in  derogation  of  the  common  law,  and  must  be  strictly  pursued  in  order  to  give 
the  Court  jurisdiction  over  the  person  of  the  defendant.  A  failure  to  comply  with 
the  rule  there  prescribed  in  any  particular  is  fatal  where  it  is  not  cui-ed  by  an 
appearance."  In  M' Minn  v.  Whelan  (27  California,  ."^OO),  decided  in  1806,  the 
plaintiff  in  ejectment  traced  his  title  from  one  Maume.  The  defendants  en- 
deavored to  show  that  the  title  had  passed  to  one  of  them  under  a  previous 
judgment  against  Maume.  This  judgment  was  recovered  against  Maume  and 
others,  who  were  non-residents  of  the  State,  upon  service  of  summons  by  publi- 
cation. It  appeared  from  the  record,  that  a  supplemental  complaint  had  been 
filed  in  the  action,  and  that  the  summons  published  was  issued  upon  the  original 
complaint,  and  not  after  that  had  been  superseded  by  the  supplemental  com- 
plaint. It  was  objected  that  the  publication  thus  made  was  insufficient  to  give 
the  Court  jurisdiction  of  the  persons  of  the  absent  defendants.  The  objection 
was  answered  by  the  position  that  the  judgment  could  not  be  questioned  collat- 
erally, for  the  reason  that  the  jurisdiction  of  a  court  of  general  or  superior  juris- 
diction would  be  presumed  in  the  aljsence  of  evidence  on  the  face  of  the  record 
to  the  contrary.  But  the  Court  held  the  objection  well  taken,  and  after  referring 
to  the  case  of  Peacock  v.  Bell  (1  Saunders,  74),  said  that  that  case  "involved  the 
question  of  jurisdiction  as  to  the  subject  matter  of  the  action  and  not  as  to  the 
person  of  the  defendant;  and  it  may  be  doubted  if  a  case  can  be  found  which 
sanctions  any  Intendment  of  jurisdiction  over  the  person  of  the  defendant  when 
the  same  is  to  be  acquired  by  a  special  statutory  mode  without  personal  service 
of  process.     If  jurisdiction  of  the  person  of  the  defendant  is  to  be  acquired  l)y 

20 


294  ECCLESIASTICAL  LAW. 

There  is  another  class  of  presumptions  which  properly  falls 
under  the  head  of  conclusive  presumptions,  or,  as  they  are  termed 
in  the  law,  estoppels,  and  have  their  foundation  in  the  obliga- 
tion that  men  are  under  to  assert  the  truth,  and  for  the  promotion 
of  confidence  between  men  in  their  intercourse  with  each  other. 
They  are  not  at  liberty  to  deny  what  they  have  deliberately 
spoken  as  truth.  The  principle  of  estoppel  is  constantly  guarded, 
and  is  never  extended  by  implication,  because  estoppels  may  ex- 
clude the  truth.  No  one  should  be  prohibited  from  setting  up 
the  truth  unless  it  is  in  plain  and  clear  contradiction  of  his 
former  acts  or  declarations.  Hence,  in  order  to  be  able  to  exer- 
cise the  aid  of  this  rule,  the  former  acts  or  declarations  must  be 
certain  to  every  intent  in  particular.  In  the  application  of  the 
doctrine  of  estoppel,  it  oftener  arises  on  recitals  of  deeds,  bonds, 
and  other  specialties  than  otherwise,  and  the  general  rule  is 
thus  :  all  parties  to  a  deed,  bond,  or  specialty,  are  concluded  by 

publication  of  the  summons  in  lieu  of  personal  service,  tlie  mode  prescribed 
must  be  strictly  pursued."  But  it  is  said  that  the  Court  exercises  the  same  func- 
tions and  til e  same  power  whether  the  service  be  made  upon  the  defendant  per- 
sonally or  by  publication,  and  that,  therefore,  the  same  presumption  of  jurisdic- 
tion should  attend  the  judgment  of  the  Court  in  the  one  case  as  in  the  other. 
This  reasoning  would  abolish  the  distinction  in  the  presumptions  of  law  when 
applied  to  the  proceedings  of  a  court  of  general  jurisdiction  acting  within  the 
scope  of  its  general  powers,  and  when  applied  to  its  proceedings  had  under 
special  statutory  authorit.y.  And,  indeed,  it  is  contended  that  there  is  no  sub- 
stantial ground  for  any  distinction  in  such  cases.  The  distinction,  nevertheless, 
has  long  been  made  by  courts  of  the  highest  character,  both  in  this  country  and 
in  England,  and  we  had  supposed  that  its  existence  was  not  open  to  discussion, 
"However  high  the  authority  to  whom  a  s])ecial  statutory  power  is  delegated," 
says  Mr.  Justice  Coleridge,  of  the  Queen's  Bench,  "we  must  take  care  that  in 
the  exercise  of  it  the  facts  giving  jurisdiction  plainly  appear,  and  that  the  terms 
of  the  statute  are  complied  with.  This  rule  applies  equally  to  an  order  of  the 
Lord  Chancellor  as  to  any  order  of  Petty  Sessions.  Christie  v.  Unwin,  3  Perry 
&  Davison,  208.  "A  court  of  general  jurisdiction,"  says  the  Supreme  Court  of 
New  Hampshire,  "may  have  special  and  summary  powers,  wholly  derived  from 
statutes,  not  exercised  according  to  the  course  of  the  common  law,  and  which 
do  not  belong  to  it  as  a  court  of  general  jurisdiction.  In  such  cases  its  deci- 
sions must,  be  regarded  and  treated  like  those  of  courts  of  limited  and  special 
jurisdiction.  The  jurisdiction  in  such  cases,  both  as  to  the  subject  matter  of 
the  judgment  and  as  to  the  person  to  be  affected  by  it,  must  appear  by  the 
record;  and  every  thing  will  be  presumed  to  be  without  the  jurisdiction,  which 
docs  not  distinctly  appear  to  be  within  it."  Galpin  v.  Page,  18  Wallace,  .^iGi). 
See  also  Morse  v.  Presley,  5  Foster,  302 ;  also  Harvey  v.  Tyler,  2  Wallace,  332. 


PRESUMPTIVE  EVIDENCE.  29.') 

the  recitals  therein.  It  also  binds  privies  in  blood,  privies  in 
estate,  and  privies  in  law,  by  which  is  meant  those  who  come  in 
by  successive  relationship  under  the  deed,  bond,  or  other 
specialty.  Between  such  parties  and  privies  the  matter  recited 
need  not  be  otherwise  proved.  The  recital  in  the  subsequent 
deed,  bond,  or  other  specialty  being  conclusive,  and  as  be- 
tween such  parties  and  privies  it  is  primary  evidence,  which  can 
not  be  contradicted.  Thus,  the  recital  of  a  lease  in  a  deed  of 
release,  is  conclusive  evidence  of  the  existence  of  the  lease 
against  both  parties  and  privies.  There  are  cases  in  Avhich  a 
recital  in  a  deed  may  be  used  in  evidence  even  against  a 
stranger.  If,  for  instance,  there  is  the  recital  of  a  lease  in  a 
deed  of  release,  and  in  a  suit  against  a  stranger  the  title  under 
the  release  comes  in  question,  then  the  recital  of  the  lease  in 
such  release  is  not,  per  se,  evidence  of  the  existence  of  the  lease ; 
but  if  the  existence  and  loss  of  the  lease  be  established  by  other 
evidence,  then  the  recital  is  admissible  as  secondary  proof  in 
the  absence  of  more  perfect  evidence  to  establish  the  contents 
of  the  lease.  And  if  the  transaction  be  an  ancient  one,  and  the 
possession  has  been  long  held  under  such  release,  and  is  not 
otherwise  to  be  accounted  for,  then  the  recital  will,  of  itself, 
under  such  circumstances,  materially  fortify  the  presumption 
from  lapse  of  time  and  length  of  possession  of  the  original  ex- 
istence of  the  lease. -^ 

A  covenant  of  warranty  estops  the  grantor  or  feoffor  from 
setting  up  any  after  acquired  title  against  the  grantee,  for  the 
reason  that  the  covenant  runs  with  the  land  and  is  a  perpetually 
operating  covenant.  Thus,  it  would  seem,  where  a  deed  was 
made  to  Church  wardens,  who  were  not  a  corj)oration  clothed 
Avith  power  to  hold  lands,  for  certain  purposes,  that  the  deed  did 
not  operate  by  way  of  grant  to  convey  a  fee  to  the  Church 
wardens  and  their  successors,  as  such,  they  could  not  take, 
nor  could  they  take  in  their  natural  capacity.  But  the  covenant 
of  general  warranty  in  the  deed  binding  the  grantors  and  their 
heirs  forever,  and  warranting  the  land  to  the  Church  Avardens 
and  their  successors  forever,  may  Avell  operate  by  way  of  estop- 
pel to  confirm  to  the  Church  and  its  privies  the  perpetual  and 

^  Carver  v.  Jackson,  4  Peters,  84. 


296  ECCLESIASTICAL  LAW. 

beneficial  estate  in  the  land.^  The  doctrine  of  estoppel  is  not 
limited  in  its  application  to  deeds  and  other  specialties,  but  ex- 
tends to  verbal  acts  and  declarations.  Thus,  where  a  person 
holds  a  contract  of  purchase  of  land,  and  stands  by  and  sees 
another  purchase  the  same  land  from  his  vendor  and  fails  to 
make  known  any  claim  in  respect  to  the  land,  he  will  be  estopped 
from  afterward  claiming  it  against  such  second  purchaser.^ 

^  Ten-ett  v.  Taylor,  9  Cranch,  257. 
2  Baehr  v.   Wolf  et  al.  69  Ills.  47 L 


Part  Fourth. 
WRITTEN  EVIDENCE. 


CHAPTER  I. 

PRELUDE. 


Written  evidence,  as  we  have  had  occasion  to  remark,  is 
justly  regarded  as  higher  and  more  trustworthy  than  mere  oral 
evidence.  Writings  are  either  public  or  private.  Some  public 
writings  are  of  record,  others  are  not  of  record.  Again,  public 
writings  may  be  classified  into  such  as  are  of  a  judicial  char- 
acter, and  such  as  are  not  judicial. 


CHAPTER  II. 

the  admissibility  and  effect  of  evidence  of  judgments  and 
verdicts,  and  of  sentences  in  ecclesiastical  courts. 

Records  are  the  memorials  of  the  proceedings  of  the  legisla- 
ture and  courts  of  justice.  They  are  considered  of  such  high 
authority,  that  no  evidence  is  receivable  to  contradict  them.  "A 
record,"  said  Lord  Tenterden,  ''imports  such  absolute  verity  that 
no  person  against  whom  it  is  admissible  shall  be  allowed  to  intro- 
duce evidence  to  contradict  it ;  thus,  if  a  verdict  finding  several 
issues  were  to  be  produced  in  evidence,  the  opposite  party  would 
not  be  allowed  to  show  that  no  evidence  was  offered  in  support 
of  one  of  the  issues;  and  that  the  indorsement  on  the  j^osfea  was 
by  mistake.'      On   an   indictment  for  assisting  the  escape  of  a 

^  Lord  Kenyon,  C.  J.  I  think  the  judge's  direction  was  right  on  both  points. 
The  record  was  admissible  evidence,  though  between  other  parties  as  to  the  find- 
ing upon  the  right  to  the  public  foot  way,  which  was  negatived.  The  defendants  in 
both  cases  stood  in  the  same  relative  situation.  In  the  case  of  customary  com- 
moners, a  verdict  in  an  action  for  or  against  one  is  evidence  for  or  against  an- 
other claiming  in  the  same  right.     So  in  other  cases  of  public  prescription,  what 

297 


298  ECCLESIASTICAL  LAW. 

prisoner,  if  the  record  of  the  conviction  is  produced  by  the 
proper  officer,  evidence  is  not  admissible  to  dispute  or  contradict 
the  record,  even  though  the  indictment  referred  to  it  witli  a 
proiit  patct  per  recordmn  as  remaining  among-  the  records.  A 
custodian  of  a  record,  whose  duty  it  was  to  make  up  the  same, 
may  be  examined  as  to  who  has  the  care  and  custody  of  the  rec- 
ord, and  as  to  their  condition,  but  not  as  to  their  contents. 

A  record  will  not  be  conclusive,  however,  as  to  the  truth  of 
allegations  which  were  not  material  nor  traversable.  Thus,  in 
the  case  of  a  conviction  for  a  crime,  where  the  jury  have  ren- 
dered a  general  verdict,  the  record  will  not  be  conclusive  that  the 
offense  was  committed  on  the  day  mentioned  in  the  indictment, 
for  time  is  not  of  the  essence  or  substance  of  the  charge ;  and 
therefore  a  party  interested,  to  dispute  the  fact  may  prove  that 
the  offense  was  committed  on  a  different  day  from  that  alleged  in 
the  record.^  Where  the  record  of  a  judgment  or  verdict  offered 
in  evidence  is  not  liable  to  be  contradicted  as  to  the  truth  of  its 
contents  on  material  and  traversable  matters  contained  in  it,  the 
question  as  to  its  admissibility  or  effect  in  evidence  must  depend 
upon  the  inference  attempted  to  be  drawn  from  it.  The  infer- 
ences to  be  drawn  from  a  record  are  sometimes  necessary  and 
conclusive,  and  sometimes  optional.  AA^'here  a  judgment  is  pro- 
duced merely  for  the  purpose  of  showing  that  such  a  proceeding 
actually  took  place,  as  with  a  view  to  disqualify  a  witness  by 
showing  that  he  was  convicted  of  an  infjxmous  crime,  and  that 
judgment  was  pronounced  upon  such  conviction,  the  record  is 
conclusive  of  the  fact  of  conviction ;  the  fact  of  conviction,  and 
not  the  guilt  or  innocence  of  the  party,  being  by  law  made  the 
criterion  of  incompetency.  The  legal  consequences  arising  from 
a  judgment  having  been  pronounced  by  a  court  of  competent 
jurisdiction  are  various.  In  some  cases  a  judgment  constitutes  a 
part  muniment  of  title,  in  others  it  is  used  merely  to  show  a  suit 
determined,  or  to  let  in  evidence  of  what  was  sworn  to  by  a  de- 
ceased witness  upon  a  trial,  or  to  entitle  a  partner  to  contribution, 

weiglit  the  evidence  was  entitled  to  is  another  question ;   perhaps  not  too  much, 
and  certainly  it  was  not  conclusive.     But  the  evidence  offered  b}'  the  defendant 
went  to  impeach  the  authenticity  of  the  record  as  to  the  fact  of  such  a  finding, 
and  therefore  was  not  admissible.      Reed  v.  Jacknon,  1  Ivist,  357. 
^  Attorney -General  v.  Ring,  5  Price,  li)5. 


JUDGMENTS  AND  VERDICTS.  299 

or  to  show  tluit  a  party  by  process  of  law  has  been  compelled  to 
pay  damages  to  a  certain  amount. 

A  judgment,  as  a  general  principle,  is  evidence  between  the 
parties  and  privies,  but  it  ought  not  to  be  binding  upon  a  third 
party;  for  it  would  be  unjust  to  affect  any  person  by  a  judgment 
who  could  not  be  admitted  to  make  a  defense  or  to  examine  wit- 
nesses or  to  appeal  from  a  judgment  he  might  think  erroneous. 
There  are,  however,  exceptions  to  the  general  rule,  founded  upon 
particular  reasons,  Avhich  do  not  fall  within  the  scope  of  this 
treatise.  In  the  Duchess  of  Kingston's  case,  Lord  Chief-Justice 
Delsrey  in  delivering  his  celebrated  judgment,  said:  "  From  the 
variety  of  causes  relative  to  judgments  being  given  in  evidence 
in  civil  suits,  these  two  deductions  seem  to  follow^  as  generally 
true :  first,  that  a  judgment  of  a  court  of  concurrent  jurisdiction 
directly  upon  the  point,  is  as  a  plea  in  bar,  or  as  evidence  con- 
clusive between  the  same  parties  upon  the  same  matter  directly 
in  question  in  another  court;  secondly,  that  a  judgment  of  a 
court  of  exclusive  jurisdiction,  directly  upon  the  point,  is  in  like 
manner  conclusive  upon  the  same  matter  between  the  same  parties 
coming  incidentally  in  question  in  another  court  for  a  different 
purpose  ;  but  neither  the  judgment  of  a  concurrent  nor  an  exclu- 
sive jurisdiction  is  evidence  of  any  matter  wdiich  came  collater- 
ally in  question,  though  within  their  jurisdiction,  nor  of  any 
matter  incidentally  cognizable,  nor  of  any  matter  to  be  inferred 
by  argument  from  the  judgment."  4  Term  R.  590.  With  refer- 
ence to  the  parties  between  whom  judgment  and  verdict  are  to  be 
used,  and  the  matters  to  which  they  relate,  these  two  classes  of 
judgments  are  put  upon  the  same  footing,  and  are  subject  to  the 
same  limitation  and  restriction ;  that  is,  the  matter  nu:st  be  the 
same,  or,  in  other  words,  the  subject  of  inquiry  must  be  the 
same,  and  the  parties  the  same.  But  it  is  said  that  a  much 
more  conclusive  effect  should  be  given  to  the  judgments  of  courts 
of  exclusive  jurisdiction  than  is  to  be  attributed  to  the  judg- 
ments of  courts  which  have  only  a  concurrent  jurisdiction.  But 
this  seems  to  us  to  be  a  shadow  without  a  substance  in  either j 
the  judgment  Avhere  the  court  had  jurisdiction  to  pronounce  it 
as  evidence  is  conclusive. 

A  record  of  a  conviction  or  verdict  can  not  be  given  in  evi- 
dence  for   or  against    a  third   party.     Even  where   the  benefit 


300  ECCLESIASTICAL  LAW. 

thereof  may  be  matei'ial,  that  is,  such  us  miglit  have  been  given 
in  evidence  either  for  the  plaintiff  or  defendant.  Chief  Baron 
Gilbert  laid  the  rule  down  to  be  that  no  person  can  claim  any 
advantage  by  reason  of  a  judgment  or  verdict  who  would  not 
have  been  prejudiced  by  it,  had  it  gone  contrary.^ 

It  would  seem  unjust  that  proceedings  should  be  evidence 
against  a  stranger,  who  has  had  no  opportunity  of  calling  wit- 
nesses, or  of  cross-examining  the  witnesses  on  the  other  side;  or 
of  appealing  from  the  judgment.  It  may,  perhaps,  be  thought  a 
sufficient  reason  for  not  allowing  verdicts  and  judgments  as  evi- 
dence for  a  stranger  even  against  a  party  who  was  engaged  in 
the  former  suit,  that  if  the  stranger  had  been  a  party  to  that  suit 
instead  of  the  person  Avho  succeeded  in  it,  the  result  might  have 
been  different  under  such  circumstances.  To  admit  a  verdict  or 
judgment  as  evidence  would  be  giving  a  party  indirectly  the 
beneHt  of  testimony  which  he  might  be  precluded  from  using 
directly  in  his  own  cause.  This  rule  is  no  less  applicable  to 
criminal  than  to  civil  cases ;  accordingly  where  two  are  indicted 
separately  for  the  same  offense,  and  one  was  convicted  and  judg- 
ment passed  upon  him,  it  was  held  by  the  court  in  Ohio  that  the 
record  was  not  admissible  evidence  against  the  other.  ^     So,  when 


'  Glib.  Ev.  28 ;  Ward  v.  Wilkinson,  4  B.  &  A.  412. 

^  Two  persons  indicted  separately  for  the  same  arson,  one  convicted  and 
judgment  passed,  the  record  is  not  admissible  evidence  against  the  other  when 
on  trial.  After  the  prosecutor  had  given  some  evidence  to  the  jury  of  a  concert 
between  James  Terry,  SamuelJohnson,a  negro,  and  the  defendant,  in  burning  the 
store,  the  prosecutor  offered  in  evidence  an  exemplification  of  the  record  of  the 
conviction  of  Samuel  Johnson  for  his  ofifense,  which  was  objected  to,  but  re- 
ceived, and  a  bill  of  exceptions  was  signed  by  the  Court.  The  defendant  was 
foutid  guilty  by  the  jur}',  sentenced  by  the  Court  to  ten  years'  imprisonment  in 
the  penitentiary,  and  judgment  against  him  for  costs.  To  reverse  this  judgment 
this  writ  of  error  was  brought. 

Tiie  plaintiflf  in  error  relies  principally  on  the  admission  of  the  record  of 
the  conviction  of  Johnson.  In  admitting  this  record  the  Court  erred.  The  rec- 
ord of  conviction  is  evidence  whenever  the  fact  of  the  conviction  becomes  on 
trial  material.  It  is  the  best  evidence  of  that  fact  as  where  the  prosecutor 
makes  the  convict  an  important  witness.  Whenever  he  is  offered  to  testify,  the 
record  of  the  conviction  may  be  produced.  In  this  cause  the  conviction  of 
Johnson  was  not  material,  although  Johnson  and  the  defendant  had  conspired 
to  bum  the  store,  Johnson  might  have  been  convicted,  and  the  defendant  be  not 
guilty:  or  acquitted,  and  the  defendant  guilty.  They  might  have  agreed  to 
burn  the  store,  and  the  agreement  be  not  consummated.     The  store,  notwith- 


JUDGiMENTS  AND  VERDICTS.  301 

defendants,  on  being  sued,  pleaded  in  abatement  tlie  nou-joindei- 
of  others  as  partners  and  succeeded  on  such  plea,  the  record  is 
not  admissible  in  evidence  in  a  subsequent  suit,  in  Avhich  such 
others  are  joined,  to  charge  them  as  liable  with  the  rest;  but  the 
record  is  evidence  against  those  who  pleaded  that  all  who  are 
alleged  to  be  partners  are  so  in  fact. 

Mr.  Starkie  says  that  "a  record  is  evidence  against  one  who 
might  have  been  a  party  to  it,  for  he  can  not  complain  of  the 
want  of  those  advantages  which  he  has  voluntarily  renounced." 
1  Starkie  Ev.  195.  An  agreement  between  several  persons  lia- 
ble upon  the  same  instrument  to  be  bound  by  a  verdict  against 
one,  may  so  far  connect  the  rest  with  the  proceedings  as  to  ren- 
der the  verdict  admissible  in  an  action  against  them.  Thus,  a 
special  verdict,  given  in  another  action  on  the  same  policy  of 
insurance,  but  against  a  different  underwriter,  has  been  received 
where  it  was  shown  that  all  the  underwriters  had  agreed  to  be 
bound  by  one  verdict ;  for  under  the  agreement  they  are  each 
entitled  to  interfere  on  the  former  trial,  and  cross-examine 
witnesses.  It  was  held,  however,  that  such  verdict  was  not  con- 
clusive. But  a  person  is  not  to  be  affected  by  a  decision  between 
others,  merely  because  he  was  present  at  the  trial  and  cross-exam- 
ined the  witness.  He  must,  like  a  party,  have  had  a  full,  fair, 
and  previous  opportunity  to  meet  the  question  in  controversy.-^ 

In  the  same  manner  admissions  and  declarations  may  be  used 
against  the  actual  parties  to  the  record,  though  they  are  not  the 
nominal  parties  to  the  record.  Verdicts  and  judgments  are  re- 
ceivable in  evidence  against  the  parties  on  Avhose  account  the 
action  in  Avhich  the  judgment  was  obtained  was  instituted  or  de- 
fended. Thus,  in  an  action  for  a  penalty  incurred  by  destroying 
fish  in  the  plaintiff's  fishery,  a  verdict  for  the  plaintiff  in  a  former 
action  for  a  trespass  committed  in  the  same  fishery  against  one 
who  justified  as  servant  was  admitted  to  be  evidence  against  the 

standing  such  conspiracy,  might  be  burned  by  others.  Johnson  might  have  been 
convicted  on  insufficient  testimony.  The  defendant  was  not  confronted  with  the 
witnesses  who  testified  against  Johnson;  he  had  no  opportunity  to  cross-exam- 
ine them.  Can  he,  then,  be  bound  by  the  inferences  drawn  by  the  jury  in  that 
case?  A  juror  who  tried  Johnson  would  have  been  rejected,  lest  he  should  be 
influenced  by  what  he  heard,  and  the  opinion  he  tlien  formed.  Judgment  re- 
versed. Kazer  v.  The  Slate  of  Ohio,  5  Ohio,  280. 
^Turpin  v.  Thomas,  2  Hen.  &  Munf.  139, 


302  ECCLESIASTICAL  LAW. 

defendant  for  tliese  reasons,  that  the  defendant  in  tlie  second  suit 
acted  by  the  command  of  the  same  person  under  whom  tlie  de- 
fendant in  the  first  action  had  justified,  who  was  considered  to  be 
the  true  party  in  both  cases.  ^  Tliis  rule,  liowever,  was  after- 
Avards  criticised  by  Lord  EUenborough,  who  questioned  the  admis- 
sibility of  the  former  record  in  evidence,  but  denied  to  it  the  effect 
of  an  estoppel.^  And  Spencer,  Justice,  in  delivering  the  opin- 
ion of  the  Supreme  Court  of  New  York,  pronounced  the  rule  laid 
down  in  Klnnersly  v.  Orpe,  supra,  as  irreconcilable  Avith  the  rules 
of  evidence  on  any  other  ground  than  that  both  suits  Avere;  sub- 
stantially against  the  same  parties.  Case  y.  Beeves,  14  John.  82. 
But  the  rule,  although  it  has  often  been  questioned  and  sometimes 
qualified,  has  never  been  overruled  in  England,  and  has  been  ad- 
hered to  in  a  number  of  the  States  in  America,  and  may,  there- 
fore, be  regarded  as  receiving  the  Aveight  of  judicial  authority 
and  sanction.  Upon  the  same  principle  a  judgment  in  an  action 
against  the  sheriff  alone,  of  which  his  securities  had  no  notice, 
Avas  held  to  he  prima  facie  evidence  of  the  amount  of  damages  in 
a  subsequent  suit  upon  the  recognizance  upon  the  sheriff  and 
his  securities  jointly,  but  not  conclusive,^  But  in  Virginia  a 
Avider  range  has  apparently  been  given  to  the  judgment  against 
the  principal,  for  it  seems  there  to  be  allowed  as  prima  facie  evi- 
dence against  the  security  on  all  points  established  by  it.  ^  So  in 
covenant  upon  a  general  Avarranty  in  a  deed  for  land,  a  judgment 
by  a  person  claiming  title  against  the  A^endee,  of  Avhich  the  ven- 
dor had  no  notice,  Avas  held  competent  evidence  to  prove  an  evic- 
tion, but  not  to  establish  that  such  eviction  Avas  by  title  para- 
mount.^ In  an  action  by  the  vendee  of  personal  pi'operty  against 
the  A'endor  upon  a  Avarranty  of  title,  judgment  obtained  for  the 
property  against  the  vendee  by  a  third  person  claiming  to  be  the 
rightful  OAvner  in  a  suit  of  Avhich  the  vendor  had  no  notice,  can 
not  be  given  in  evidence  to  prove  that  the  latter  had  no  title.' 

'  Kinnershj  v.  Orpe,  2  Douglass,  517. 
^  Outran  v.  Moorionod,  3  East  R.  HGG. 
'  Carmack  v.  The  Cowmomcealth,  5  Binn,  R.  184. 

*  Munford  V.  Overseers^  2  Rand.  R.  .SKJ;    Baker  v.  Preston,  1   Gilmer's  R. 
235;   Jacobs  v.  Hill.,  8  Loigh  R.  393;   Braxton  v.  Winsloio,  1  Wasliin.  R.  31. 

*  Hooker  v.  Bell,  3  Bibb.  175;  Prewit  v.  Kenton,  3  Bibb,  280. 

'^Stevens  v.  Jack,  3  Serg.  R.  '103;   Sanders  v.   Hamilton,  2  Hayw.  R   226; 
Jacob  V.  Price,  2  Rawie  R.  204. 


JUDGMENTS  AND  VERDICTS.  303 

Where  tlie  assis^nee  siierl  the  .assignor  of  a  cliose  in  action,  it  was 
held  tliat  a  verdict  and  judgment  in  favor  of  the  maker  at  the 
suit  of  the  assignee  in  which  the  jury  found  that  tlie  demand  as- 
signed had  been  paid  previous  to  tlie  assignment,  could  not  be 
given  in  evidence  unless  the  assignor  had  due  notice  of  the  first 
action  and  an  opportunity  to  meet  the  defense  there  set  up.^  lint 
where  it  is  necessary  that  the  assignee,  in  the  exercise  of  due 
diligence,  should  prosecute  the  maker  to  judgment  and  execution, 
the  judgment  would  be  evidence  to  prove  the  fact  of  such  dili- 
gence. Where  a  person  has  a  right  of  recovery  secured  to  him 
either  by  operation  of  law  or  express  contract,  and  he  has  given 
the  person  so  responsible  due  notice  of  the  suit,  that  judgment,  if 
obtained  without  fraud  or  collusion,  Aviil  be  evidence  conclusive  in 
its  form  against  such  person  upon  every  fact  established  by  such 
judgment;  and  such  person  can  not  be  viewed  in  the  light  of  a 
mere  stranger,  but  he  has  the  same  means  of  controverting  the 
adverse  claim  as  though  he  were  the  real  or  nominal  party  on 
the    record.^      Upon  this  same   principle  it  has  been  held  that 

'  Maiipin  v.  Compton,  3  Bibb,  214. 

^  Leather  v.  Paultnei/,  4  Bin.  R.  352;    Bender  v.  Fromherger^  4  Dall.  436; 
Jacob  V.  Pierce^  2  Rawle,  R.  204. 

Parson,  C.  J.:  This  is  an  action  of  covenant  broken  on  a  deed  of  the  de- 
fendant's testator  conveying  one  hundred  acres  of  uncultivated  land,  with  gen- 
eral warranty.  The  plaintiff  assigns,  as  a  breach  of  this  covenant,  that  at  the 
time  of  the  conveyance  one  Moore  was  lawfully  seized  in  fee  simple  of  sixty 
acres,  parcel  of  the  said  one  hundred  acres,  and  that  afterwards  one  M'Crealis, 
holding  Moore's  title,  bad  entered  into  possession  of,  and  evicted  the  plaintiff 
from,  the  said  sixty  acres.  The  defendants  traverse  the  eviction,  and  issue  being 
joined  thereon,  a  verdict  is  found  for  the  plaintiff  The  cause  now  comes  before 
the  Court  upon  a  motion  for  a  new  trial  by  the  defendants  for  a  supposed  mis- 
direction of  the  judge  at  the  trial. 

The  first  objection  is,  that  the  judge  admitted  parol  evidence  to  prove  the 
eviction,  which  the  counsel  for  the  defendants  contend  can  only  be  proved  by  the 
record  of  a  judgment  at  law.  And  we  are  all  of  opinion,  that  to  prove  an  evic- 
tion according  to  its  strict  and  technical  meaning,  a  judgment  of  court  is  neces- 
sary. But  we  are  inclined  to  give  to  the  term  a  more  extended  signification,  and 
to  understand  it  in  that  case  as  synonymous  with  ouster. 

But,  secondly,  it  is  contended  that  here  was  no  legal  evidence  of  an  ouster, 
because  the  dispossession  took  place  with  the  consent  of  the  tenant  in  possession. 

It  is  true,  if  the  tenant  consented  to  an  unlawful  ouster  he  can  not  after- 
wards be  entitled  to  a  remedy  for  such  ouster.  But  an  ouster  may  be  lawful; 
and  in  that  case  the  tenant  may  yield  to  a  dispossession  without  losing  his 
remedy  on  the  covenant  of  warranty  which,  in  this  State,  is  a  personal  action  of 


304  ECCLESIASTICAL  LAW. 


the  equitable  assignee  of  a  chose  in  action  is  estopped  hy  a 
verdict  and  judgment  thereon  in  the  same  manner  as  if  he 
were  a  party. 

CHAPTER  III. 

VERDICTS  AND  JUDGMENTS ;    WHEN  ADMISSIBLE  IN  EVIDENCE  CON- 
SIDERED WITH  REFERENCE  TO  THE  PARTIES. 

A  RECORD  of  conviction  of  a  principal  in  the  crime  of  steal- 
ing who  pleaded  guilty  is  not  receivable  in  evidence  against  the 
receiver  of  the  stolen  property,  nor  against  an  accessory  after  the 
fact,  for  the  purpose  of  proving  the  guilt  of  the  principal ;  but  if 
it  become  material  to  ascertain  whether  a  conviction,  based  upon 
a  criminal  charge,  has  been  had,  as  in  an  action  for  malicious 
prosecution  or  slander,  then,  as  proof  of  the  fact  of  conviction, 
the  record  would  be  not  only  admissible  but  conclusive  evidence. 
But  it  seems  not  to  be  admissible  evidence  of  the  guilt  of  the  con- 
vict as  against  another  person  charged  with  being  connected  Avith 
him  in  the  commission  of  the  crime.  The  record  in  this  respect 
being  res  inter  alios  acta,  and  therefore  the  record  is  not  evidence 
as  against  a  third  person  as  to  the  ground  upon  which  the  convic- 
tion proceeded. 

From  the  rule  that  verdicts  and  judgments  are  evidence  only 
between  the  same  parties,  it  follows  as  a  consequence,  that  a  con- 
viction in  a  criminal  proceeding  is  not  admissible  in  a  civil  action, 
although  both  the  civil  and  criminal  proceedings  may  involve  an 
inquiry  into,  or  an  investigation  of,  the  same  subject  matter. 
This  leads  us  to  inquire  how  far  verdicts  and  judgments  rendered 
in  our  civil  courts  are  admissible  in  evidence  in  a  Church  trial  or 
investigation.  While  it  can  not  be  contended  that  the  parties  in 
a  Ciiurch  trial  and  in  a  civil  or  criminal  proceeding  are  the  same, 
and  tliat  verdicts  and  judgments  are  inadmissible  for  that  reason, 

covenant  l)roken.  There  is  no  necessity  for  liini  to  involve  himself  in  a  law- 
suit to  defend  himself  against  a  title  which  he  is  satisfied  must  ultimately  prevail. 
But  he  consents  at  his  own  peril.  If  the  title  to  which  he  has  yielded  be  not 
good,  he  must  abide  the  loss,  and  in  a  suit  against  his  warrantor  the  burden  of 
proof  will  be  on  the  plaintiff,  although  it  would  be  otherwise  in  case  of  an  evic- 
tion by  force  of  a  judgment  at  law,  with  notice  of  the  suit  to  the  warrantor;  for 
in  such  case,  unless  it  be  obtained  by  fraud,  the  judgment  itself  will  be  plenary 
evidence.     IlamiUun  v.   Cutts,  4  Mass.  352. 


JUDGMENTS  AND  VERDICTS  AS  EVIDENCE.  305 


tliat  is,  upon  the  general  ground  of  a  want  of  mutuality  in  tlie 
parties,  there  is,  however,  to  our  minds,  a  far  more  satisfactory 
ground  of  exclusion  to  be  found  in  the  fact  that  the  modes  of  in- 
vestigation and  the  rules  of  decision  are  not  the  same.  In  the 
one  case  the  decision  is  based  upon  arbitrary  rules  of  law  enacted 
by  the  government  without  regard  to  the  question  of  guilt  or  in- 
nocence, right  or  wrong,  ethically  considered;  in  the  other, 
natural  right  and  moral  wrong  are  aimed  at  and  nicer  shades  of 
distinction  are  drawn.  But  questions  will  frequently  arise  in 
Church  trials  or  investigations  not  as  to  the  guilt  or  innocence  of 
the  accused  alone,  but  as  to  the  existence  of  certain  records  or 
proceedings  in  our  civil  courts.  In  such  cases  the  record  consti- 
tuting a  material  part  of  the  inquiry  is  properly  receivable  in 
evidence  for  the  purpose  of  proving  its  own  existence.  Thus,  a 
record  is  admissible  and  conclusive  evidence  of  the  fact  in  a 
Church  trial  against  the  accessory  that  the  principal  felon  has 
been  convicted  ;  but  the  accessory  may  deny  that  the  principal 
committed  the  crime,  and  he  may  also  controvert  the  allegation 
of  his  being  accessory  to  its  commission,  for  in  relation  to  these 
points  the  record,  when  it  is  admissible  at  all,  is  only  prima 
facie  evidence,^ 

This  leads  us  to  notice  a  distinction  that  is  not  very  clearly 
pointed  out  by  our  elementary  writers  on  the  law  of  evidence, 
but  which,  when  properly  understood,  enables  us  to  reconcile 
many  of  the  seeming  anomalies  in  this  branch  of  the  law  of  evi- 
dence. A  verdict  or  judgment  is  offered  in  evidence  either  to 
establish  the  mere  fact  of  its  own  rendition  and  those  legal  con- 
sequences which  result  from  the  fact,  or  it  is  offered  with  a  view 
to  collateral  purposes ;  that  is,  to  prove  not  only  the  fact  that 
such  a  judgment  or  verdict  has  been  rendered  and  so  let  in  all 
the  necessary  legal  consequences,  and  thus  become  the  medium 
of  proving  some  fact  as  found  by  the  verdict  upon  whose  sup- 
posed existence  the  judgment  is  based.  For  the  first  of  these 
purposes,  that  is,  for  establishing  the  fact  that  such  a  judgment 
was  pronounced  and  all  the  legal  consequences  of  such  a  judg- 
ment, the  judgment  itself  is  invariably  not  only  admissible  as  the 
proper  legal  evidence,  but  usually  conclusive  evidence  to  prove 

1  The  Slate  v.  Chitiem,  2  Dev.  R.  49 ;    The  State  v.  Sims,  2  Bailey,  29. 


306  ECCLESIASTICAL  LAW. 


that  fact  I  for  it  will  be  presumed  that  the  court  or  other  tribunal 
has  made  a  faithful  record  of  its  own  proceedings ;  and,  in  the 
next  place,  the  mere  fact  that  such  a  judgment  was  given  can 
never  be  considered  as  res  inter  alios  acta,  being  a  thing  done  by 
public  authority  ;  neither  can  the  legal  consequences  of  such  a 
judgment  be  ever  so  considered,  for  where  the  law  gives  to  a 
judgment  a  particular  operation,  that  operation  is  properly  shown 
and  demonstrated  by  means  of  the  judgment,  which  is  no  more 
res  inter  alios  than  tlie  law  that  gives  it  force;  but  with  reference 
to  any  fact,  upon  the  supposed  existence  of  which  the  judgment 
is  founded,  the  proceedings  may  or  may  not  be  res  inter  alios, 
according  to  the  circumstances.  For  illustration  :  if  a  party  be 
prosecuted  and  convicted  of  assaulting  and  beating  another,  the 
record  of  the  judgment  would  be  incontrovertible  evidence  of  the 
fact  that  such  party  had  been  so  convicted,  and,  in  like  manner, 
would  be  conclusive  as  to  all  the  legal  consequences  of  such  a 
conviction.  And  as  one  of  the  legal  consequences  resulting  from 
a  conviction  is  that  the  offender  shall  not  be  punished  a  second 
time  for  the  same  offense,  consequently  the  record  would  be  con- 
clusive to  protect  him  from  a  second  prosecution  for  the  same 
crime ;  so  if  a  party  has  been  acquitted  and  has  brought  an 
action  against  another  party  for  a  malicious  prosecution,  it  would 
become  necessary  to  prove  the  fact  of  acquittal,  and  for  this  pur- 
pose the  record  is  conclusive  evidence.  But  suppose  the  party 
convicted  was  sued  in  an  action  of  trespass  to  recover  damages 
for  the  assault  of  which  he  was  convicted,  and  offered  to  prove 
the  assault  by  the  record  of  conviction,  he  would  then  be  offering 
a  judgment,  not  with  a  view  of  proving  the  mere  fact  of  convic- 
tion, or  to  establish  legal  consequences  to  be  derived  from  it,  but 
for  the  collateral  purpose  of  proving  the  fact  upon  the  supposed 
existence  of  which  the  judgment  was  found.  AVith  respect  to 
such  fact,  that  is,  the  facts  upon  which  a  judgment  professed  to 
be  founded,  it  may  or  may  not  be  evidence,  according  to  the  cir- 
cumstances, considering  the  nature  of  the  facts  themselves  and 
the  parties.^ 

A  record  between  different  parties  is  frequently  admissible  in 
evidence  by  way  of  inducement  to  the  action  or  prosecution  ;  for 

'  2  Starkie's  Ev.  182-181;  Stephens  v.  Jack,  3  York.  Rep.  403. 


JUDGMENTS  AND  VERDICTS  AS  EVIl^ENCE.  307 

illustration,  upon  an  indictment  for  purjury,  the  record  of  the 
trial  upon  whicii  the  peijurj  was  alleged  to  have  been  committed 
must  be  produced  in  order  to  show  that  such  trial  took  place. 
Also  in  an  action  against  a  sheriff  for  negligence  in  the  service 
of  an  execution,  the  creditor's  judgment  is,  of  course,  admis- 
sible.-' So  a  verdict  and  judgment  in  a  former  cause  is  fre- 
quently admissible,  where  it  is  between  different  parties,  for  the 
purpose  of  laying  the  foundation  for  the  introduction  of  evidence, 
showing  that  a  witness  testified  differently  there  to  what  he  now 
does,  or  to  prove  that  he  testified  alike  on  both  trials  after  his 
credit  had  been  assailed.^  A  judgment  rendered  by  a  person  or 
a  court  having  competent  authority  is  admissible  to  protect  him 
against  actions  for  any  thing  judicially  done  within  the  scope  of 
that  authority,  and  in  sucl\  a  case  the  judgment  is  not  received 
to  prove  the  truth  of  the  fact  upon  which  it  is  founded,  for 
with  a  view  to  the  defense,  the  truth  of  those  facts  is  not  ma- 
terial ;  but  in  order  to  prove  the  fact  of  a  judgment  pronounced 
by  competent  authority  so  as  to  establish  the  immunity  of  the 
judge  which  is  a  legal  consequence  of  the  judgment,  such 
judgment  becomes,  without  reference  to  the  parties,  an  essential 
link  in  the  defense.  So  where  the  sheriff  is  sued  for  trespass- 
ing and  he  is  justified  under  an  execution,  the  judgment  upon 
which  the  execution  issued,  although  between  third  parties,  is 
admissible.' 

The  same  doctrine  obtains  in  regard  to  a  judgment  or  decree 
whicli  is  of  the  muniments  of  a  party's  estate ;  as  where  it  is 
necessary  to  establish  the  validity  of  a  deed  made  under  the 
authority  of  a  decree  in  Chancery,  there  the  decree  may  be 
given  in  evidence  by  or  against  a  stranger.  The  judgment  in 
such  a  case  comes  in  as  a  fact,  or,  in  other  words,  as  a  link  in  the 
chain  of  title,  upon  the  same  ground  that  the  conveyance  would* 

^  Adams  v.  Boggs,  5  Greenl.  188. 

2  Foster  v.  Shaw,  7  Serg.  &  Rawle,  156  ;  Moore  v.  Smith,  14  Serg.  &  Rawle,  388. 

■^2  Starkie'sEv.  188,  189. 

*  A  decree  in  Chancery,  under  which  title  to  land  has  been  made,  is  admissible 
in  evidence  as  one  of  the  links  in  the  chain  of  title,  though  inter  alios  Justice 
Story  delivers  the  opinion  of  the  Court,  and  on  this  point  the  Court  say:  "An- 
other error  alleged  is,  that  the  Court  allowed  the  decree  of  the  Circuit  Court  in 
the  Chancery  suit  between  Michael  Gratz  and  John  Craig  and  others  to  be  given 
in  evidence   to  the  jury.     In  our  opinion   this   record  was  clearly  admissible. 


308  ECCLESIASriCAI.  LAW. 


to  prove  the  link  in  the  chain  of  title.  A  decree  of  a  court  of 
chancery  is  admissible  in  evidence,  when  relevant  to  the  issue  in 
an  action  at  law  under  the  same  limitations,  and  subject  to  the 
same  rules  as  verdicts  or  judgments,  that  the  decree  of  a  court 
of  Chancery  determining  the  amount  due  from  one  party  to  an- 
other will  be  enforced  in  a  court  of  law.  It  was  formerly  held 
that  an  action  at  law  was  not  maintainable  upon  the  decree  of  a 
court  of  equity  for  a  specific  performance,  the  decree  merely  ascer- 
taining that  a  party  is  under  equitable  obligations  to  pay  money.  ^ 
But  it  is  now  well  settled  that  the  effect  of  a  decree  in  Chancery 

It  is  true  that  in  general  judgments  and  decrees  are  evidence  only  in  suits  between 
parties  and  privies.  But  the  doctrine  is  wholly  inapplicable  to  a  case  like  the  pres- 
ent, where  the  decree  is  not  introduced  as  per  se  binding  upon  any  rights  of  the 
other  party  but  as  an  introductory  fact  to  a  link  in  the  chain  of  the  plaintiff's 
title  and  constituting  a  part  of  the  muniments  of  his  estate  ;  without  establishing 
the  decree,  it  would  be  impossible  to  establish  the  legal  validity  of  the  deed  from 
Robert  Johnson  to  the  lessors  of  the  plaintiffs,  which  was  made  under  the 
authority  of  that  decree;  and,  under  such  circumstances,  to  reject  the  proof 
of  the  decree  would  be,  in  effect,  to  declare  that  no  title  derived  under 
a  decree  in  Chancery  was  of  any  validity,  except  in  a  suit  between  parties 
and  privies,  so  that  in  a  suit  by  or  against  a  stranger  it  would  be  a  mere  nullity. 
It  might,  with  as  much  propriety,  be  argued  that  the  plaintiff  was  not  at  liberty 
to  prove  any  other  title-deeds  in  this  suit  because  they  were  res  inter  alios  acta. 
Barr  v.  Gratzs  Heirs,  4  Curtis,  379. 

HoJlinsivorth  v.  Barbour,  9  Curtis,  156.  In  this  case  Baldwin,  J.,  delivers 
the  opinion  of  the  Court  and,  among  other  things,  says:  "It  is  an  acknowledged 
general  principle  that  judgments  and  decrees  are  binding  only  upon  parties  and 
privies.  The  reason  of  the  rule  is  founded  in  the  immutable  principle  of  natural 
justice  that  no  man's  rights  should  be  prejudiced  by  the  judgment  or  decree  of 
a  court  without  an  opportunity  of  defending  the  right.  This  opportunity  is 
offered,  or  supposed  in  law  to  be  offered,  by  a  citation  or  notice  to  appear  act- 
ually served;  or,  constructively,  by  pursuing  such  means  as  the  law  may,  in 
special  cases,  regard  as  equivalent  to  personal  service.  The  course  of  proceed- 
ings in  admiralty  causes  and  some  other  cases  where  the  proceedings  are  strict!}- 
in  rem,  may  be  supposed  to  be  excejitions  to  this  rule.  They  are  not  properly 
exceptions.  The  law  regards  the  seizure  of  the  thing  as  constructive  notice  to 
the  whole  world;  and  all  persons  concerned  in  interest  are  considered  as  affected 
by  this  constructive  notice.  But  if  these  cases  do  form  an  exception,  the  excep- 
tion is  confined  to  the  class  of  cases  already  noticed,  where  the  proceeding  is 
strictly  and  properly  in  rem,  and  in  wliich  the  thing  condemned  is  first  seized 
and  taken  into  the  custody  of  tlie  court."  Yet  there  is  no  doubt  that  a  decree 
can  be  introduced  in  evidence  whether  the  suit  is  between  the  same  parties  or 
not  (and  this,  of  course,  is  no  exco|)tion  to  the  general  rule  with  reference  to 
parties  and  privies). 

^Carpenter  v.  Thornton,  3  B.  &  A.  52;  Davies  v.  Lowndes,  1  Bing.  607. 


JUDGMENTS  AND  VERDICTS  AS  EVIDENCE.  809 

is  to  convert  that  which  was  a  mere  equitable  obligation  into  a 
legal  demand,  and  as  such  is  capable  of"  being  enforced  in  an 
action  at  common  law. 

Decrees  in  Chancery  between  third  parties  concerning  land 
have  been  held  to  be  evidence  for  the  purpose  of  sliowing  the 
character  in  which  the  possessor  was  in  possession,  enjoying  the 
lands,  on  a  trial  touching  or  involving  the  right  to  the  same 
lands ;  and  with  respect  to  the  objection  that  the  decree  was  res 
inter  alios  acta,  it  was  observed  that  this  reason  was  not  conclu- 
sive against  their  admissibility. 

A  question  has  sometimes  arisen  as  to  whether  a  bill  in  Chan- 
cery, which  is  a  narration  of  facts  spread  upon  the  record  by  a 
complainant,  may  be  received  in  evidence  when  offered  by  the 
other  side  against  the  complainant  on  the  principle  of  its  being 
an  admission  made  by  him.  The  authorities  on  this  question  are 
not  uniform  ;  but  the  weight  of  authority  as  well  as  reason  is 
against  the  admissibility  of  a  bill  in  Chancery  for  this  purpose; 
as  the  facts  stated  are  almost  invariably  the  mere  suggestions  of 
counsel,  made  for  the  purpose  of  obtaining  an  answer  upon  oath 
by  the  defendant.  But  a  bill  in  Cliancery  is  often  admissible  in 
evidence  to  show  the  existence  of  a  judicial  proceeding,  and  also 
that  certain  facts  were  in  issue  between  the  parties,  in  order  to 
lay  the  foundation  for  the  admission  in  evidence  of  the  answer, 
depositions,  or  decree. 

We  have  in  this  country  no  ecclesiastical  courts  such  as  are 
established  by  acts  of  Parliament  and  general  custom  in  England. 
We  have  elsewhere  showm  that  our  ecclesiastical  tribunals  are 
not  recognized  as  possessing  any  judicial  aiithority,  except  as 
such  recognition  growls  out  of  the  relation  that  the  Church  sus- 
tains to  the  civil  government.  Yet  even  here  the  sentences  of 
ecclesiastical  courts,  though  they  are  not  courts  of  record  and 
have  no  authority  except  what  is  conferred  by  voluntary  asso- 
ciation, their  findings  and  determinations,  witliin  the  scope  of 
their  jurisdictions,  are  conclusive  between  the  Churcli  and  its 
members,  for  the  purpose  and  objects  for  Avhich  they  are  had; 
and  where  those  purposes  and  objects  become  the  subj-ect  of  in- 
quiry or  investigation  in  a  subsequent  proceeding  between  the 
same  parties  in  a  Church  trial  or  investigation,  or  in  our  civil 

courts,  such  decisions  are  admissible  to  prove  matters  which  are 

21 


310  ECCLESIASTICAL  LAW. 

expressly  adjudicated ;  but  not  for  tlie  purpose  of  establisliing 
facts  which  are  only  matters  of  inference  from  the  decision. 
Tlius,  Avhere  a  legal  character  is  conferred  on  a  person  by  the 
ecclesiastical  courts,  such  as  marriage,  Church  membership,  etc., 
such  legal  character  so  conferred  binds  the  temporal  courts  the 
same  as  the  decree  of  a  court  of  equity  is  binding  upon  a  court 
of  law.  ^      It  is  said  by  the  court  in  the  case  of  the  Duchess  of 


^  III  this  unhappy  controversy  is  involved  a  graver  question  and  of  deeper 
moment  to  all  Christian  men,  indeed  to  all  men  who  believe  that  Christianity 
pure  and  simple  is  the  fairest  system  of  morals,  the  firmest  prop  to  our  govern- 
ment, the  chiefest  reliance  in  this  life  and  the  life  to  come.  Sliall  we  maintain 
the  boundary  between  the  Church  and  State,  and  let  each  revolve  in  its  respec- 
tive sphere,  the  one  undisturbed  by  the  other?  All  history  warns  us  not  to 
arouse  the  passion  or  wake  up  the  fanaticism  which  may  grapple  with  the  State 
in  a  deathly  struggle  for  supremacy. 

Our  Constitution  provides  that  "the  free  exercise  and  enjoyment  of  relig- 
ious profession  and  worship  without  discrimination  shall  forever  be  guaranteed." 
In  ecclesiastical  law,  profession  means  the  act  of  entering  into  a  religious  order. 
Religious  worship  consists  in  the  performance  of  all  the  external  acts,  and  the 
observance  of  all  ordinances  and  ceremonies  which  are  engaged  in  for  the  sole 
and  avowed  object  of  honoring  God.  The  Constitution  intended  to  guarantee 
from  all  interference  by  the  State  not  only  each  man's  religious  faith,  but  his 
membership  in  the  Church,  and  the  rites  and  discipline  which  might  be  adopted. 
The  only  exception  to  uncontrolled  liberty  is,  that  acts  of  licentiousness  shall 
not  be  excused,  and  practices  inconsistent  with  the  peace  and  safety  of  the 
State  shall  not  be  justified.  Freedom  of  religious  profession  and  worship  can 
not  be  maintained  if  the  civil  courts  trench  upon  the  domain  of  the  Church,  con- 
strue its  canons  and  rules,  dictate  its  discipline,  and  regulate  its  trials.  The 
larger  portion  of  the  Christian  world  has  always  recognized  the  truth  of  the  dec- 
larntion,  "A  Church  without  discipline  must  become,  if  not  so  already,  a  Church 
without  religion."  It  is  as  much  a  delusion  to  confer  religious  liberty  without 
the  right  to  make  and  enforce  rules  and  canons,  as  to  create  government  with- 
out power  to  punish  offenders.  The  Constitution  guarantees  the  "  free  exercise 
and  enjoyment."  Tliis  implies  not  alone  the  practice  but  the  "possession  with 
satisfaction  "  not  alone  the  exercise,  but  the  exercise  coupled  with  enjoyment. 
This  "free  exercise  and  enjoyment"  must  be,  as  each  man,  and  each  voluntary 
association  of  men,  may  determine.  The  civil  power  may  contribute  to  the  pro- 
tection but  can  not  interfere  to  destroy  or  fritter  away. 

The  civil  courts  will  interfere  with  Churches  or  religious  associations  when 
rights  of  property  or  civil  rights  are  involved.  But  they  will  not  revise  the  de- 
cisions of  such  associations  upon  ecclesiastical  matters  merely  to  ascertain  their 
juri.sdiction.  As  we  understand  the  position  of  the  defendant  in  error,  his  civil 
rights  are  not  so  endangered  as  to  require  our  interposition.  It  may  not  be  im- 
jiropcr  to  collate  some  of  the  authorities  which  bear  upon   this  question.     The 


JUDGMENTS  AND  VERDICTS  AS  EVIDENCE.  311 

Kingston,  that  ^'although  a  sentence  of  nullity  of  marriage,  or  in 
affirmance  of  marriage,  or  in  suits  upon  a  promise  of  marriage, 
or  for  jactitation   of    marriage    in    the    ecclesiastical    courts    of 


controUincp  principle  is  declared  in  the  24th  statute  of  Henry  VIIT,  "Causes 
spiritual  must  be  judged  by  judges  of  the  spirituality,  and  causes  temporal  by 
temporal  judges."  In  Baptist  Church  v.  Withenell,  3  Paige,  296,  the  Chan- 
cellor said  :  "  Over  the  Church  as  such,  the  legal  tribunals  do  not  profess  to  have 
any  jurisdiction  whatever,  except  to  protect  the  civil  rights  of  others,  and  pre- 
serve the  public  peace.  All  questions  relating  to  the  faith  and  practice  of  the 
Church  and  its  members  belong  to  the  Church  judicatories,  to  which  they  have 
voluntarily  subjected  themselves."  In  Saict/er  v.  Cipperli/,  7  Paige,  281,  it  is 
said,  "the  Church  as  to  its  doctrines,  government,  and  worship,  is  to  be  gov- 
erned by  its  peculiar  rules."  In  the  case  of  Gable  v.  Miller,  10  Paige,  627,  the 
learned  Chancellor  doubted  the  soundness  of  his  former  decision,  but  his  decree 
was  reversed  by  the  highest  court  in  the  State  by  a  vote  of  fourteen  to  three. 
Miller  V.  Gable,  2  Denio,  492.  The  same  principle  was  enunciated  in  Robert- 
son V.  Biillion.%  9  Barb.  G4,  and  Diefendorf  v.  Ref.  (hi.  Church,  20  John.  12. 

In  the  case  of  the  German  Reformed  Church  v.  Seibert,  3  Barr.  291,  it  is 
said :  "  The  decisions  of  ecclesiastical  courts  are  final,  as  they  are  the  best 
judges  of  what  constitutes  an  offense  against  the  Word  of  God  and  the  disci- 
pline of  the  Church."  The  Court  of  Appeals  of  Kentucky,  in  Shannon  v.  Frost, 
3  Ben.  Monroe,  25!^,  says :  "  This  Court  having  no  ecclesiastical  jurisdiction, 
can  not  revise  ordinary  acts  of  Church  discipline  or  excision."  In  a  recent  case 
of  Forbes  v.  Eden  (Cases  in  House  of  Lords,  3  Series,  Vol.  5,  36),  decided  in 
1867,  the  Rev.  Mr.  Forbes  alleged  that  he  could  not  conscientiously  obey  certain 
canons,  and  that,  as  a  consequence,  he  might  be  degraded  from  his  office  of  min- 
ister and  be  deprived  of  temporal  advantages,  the  Lord  Chancellor  said :  "Ap- 
pellant does  not  allege  that  any  actual  damage  has  been  sufi"ered,  but  founds  his 
action  upon  a  possibility  of  damage  hereafter,"  and  that  "it  was  a  mere  abstract 
question,  involving  religious  dogn'.as  and  resulting  in  no  civil  consequences 
which  would  justify  the  interposition  of  a  civil  court."  Lord  Cranworth  said: 
"  There  is  no  authority  in  the  courts  to  take  cognizance  of  the  rules  of  volun- 
tary societies,  save  only  so  far  as  it  may  be  necessary  for  the  due  disposal  and 
administration  of  property."  Lord  Colony  said:  "A  court  of  law  will  not  in- 
terfere with  the  rules  of  a  voluntary  association  unless  it  is  necessary  to  protect 
some  civil  right" 

Christianity  was  never  considered  a  part  of  the  common  law  so  far  as  that 
for  a  violation  of  its  injunctions,  independent  of  the  established  laws  of  man, 
and  without  the  sanction  of  any  positive  act  made  to  inforce  those  injunctions, 
any  man  could  be  drawn  to  answer  in  a  common  law  court.  It  was  a  part  of 
the  common  law,  so  far  that  any  person  reviling,  subverting,  or  ridiculing  it, 
might  be  prosecuted,  because  such  conduct  struck  at  the  foundation  of  our 
civil  society,  and  tended,  by  its  necessary  consequences,  to  disturb  the  peace  of 
the  land,  of  which  the  common  law  was  the  preserver.  State  v.  Chandler, 
2  Harr.  555. 


312  ECCLESIASTICAL  LAW. 

England  had  been  received  in  civil  causes,  yet  tlie  parties  to  the 
cause,  or  at  least  the  parties  against  whom  the  evidence  was  re- 
ceived, were  parties  to  the  sentence  and  had  acquiesced  in  it,  or 
claimed  under  those  who  were  parties  or  had  acquiesced.  But 
these  observations  seem  to  have  reference  to  causes  where  the 
proceedings  in  the  ecclesiastical  court  were  not  proceedings  in 
rem,  and  where  the  question  of  marriage  was  only  incidentally 
determined,  but  where  the  purpose  of  the  suit  is  to  directly  de- 
prive a  person  of  the  character  of  husband  or  wife  by  sentence 
of  nullity  of  marriage.  It  appears  to  have  the  effect  of  estab- 
lishing conclusively  the  legal  status  of  the  parties  for  and  against 
all  persons.  But  it  was  held  that  a  sentence  of  excommunication 
pronounced  by  an  ecclesiastical  tribunal  for  incontinency  was  in- 
admissible on  an  issue  in  a  Court  of  Chancery  to  try  a  question 
of  legitimacy,  upon  the  ground  that  it  was  res  infer  alios  acta  ; 
but  if  it  had  been  a  sentence  on  the  point  of  marriage   in   a 


"While  we  decide  nothing  that  will  affect  the  ecclesiastical  rights  of  the  Church, 
which  we  are  not  competent  to  do,  its  civil  rights  of  property  are  subjects  for  our 
examination,  to  be  determined  in  conformity  to  the  laws  of  the  land  and  the 
principles  of  equity."  Ferraria  v.  Vasconcellos,  .31  Ills.  25.  There  are  some 
authorities  in  favor  of  interference,  but  the  cases  collated  declare  the  Jaw  as  we 
think  it  ought  to  be.  We  have  been  referred  to  numerous  cases  in  Massachu- 
setts. The  Constitution  of  that  State,  from  1780  to  1833,  makes  it  the  duty  of 
the  Legislature  "to  require  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic,  or  religious  societies,  to  make  suitable  provision,  at  their  own  ex- 
pense, for  the  institution  of  the  public  worship  of  God,  and  for  the  support  and 
maintenance  of  public  Protestant  teachers  of  piety,  religion,  and  morality  in  all 
cases  where  such  provision  shall  not  be  made  voluntarily."  Const.  Mass.  Part  1, 
Art.  3.  Laws  were  passed  for  the  purpose  contemplated,  and  an  ecclesiastical 
law  has  thus  grown  up  there.  These  decisions  are  not  applicable  in  this  State, 
as  legislative  and  judicial  interference  in  such  matters  is  expressly  forbidden  by 
the  Constitution,  which  all  are  bound  to  obey.  This  case  may  then  be  briefly 
summed  up  :  A  rector  in  the  Church  is  charged  with  nonconformity  to  its  doc- 
trines, intentional  omissions  in  the  ministration  of  its  ordinances,  and  the  at- 
tempt is  made  to  organize  a  court  compo.sed  of  his  brother  clergymen  for  a  trial. 
He  appeals  to  the  civil  court,  and  alleges,  as  the  chief  reason  for  interposition, 
the  want  of  authority  in  the  spiritual  court  to  try  him,  and  a  misconstruction  of 
the  canons.  The  same  point  was  made  to  that  court  and  its  power  denied. 
It  was  urged  with  the  same  earnestness  and  enforced  with  the  same  arguments 
there  as  here.  That  court  overruled  the  objection  and  decided  tliat  it  had  juris- 
diction. Five  intelligent  clergymen  of  the  Church,  presumed  to  he  deeply  versed 
in  I3il)Iical  and  canonical  lore,  were  more  competent  than  tliis  Court  to  decide  the 


JUDGMENTS  AND  VERDICTS  AS  EVIDENCE.  313 

question  on  the  legality  of  tlie  marriage,  it  might  have  been 
admissible.' 

It  is  a  general  rule  of  law,  applicable  as  Avell  to  a  Church 
trial  as  to  other  proceedings,  that  when  any  matter  belongs  to  the 
jurisdiction  of  one  tribunal  so  peculiarly  that  other  courts  can 
only  take  cognizance  of  the  same  subject  incidentally  and  in- 
directly, the  latter  are  bound  by  the  sentence  of  the  former,  and 
must  give  credit  to  such  sentences.^ 

Thus,  in  trespass  quare  clausum  fregit  for  breaking  the 
plaintiff's  close,  the  determination  of  the  Court  of  Sessions 
locating  the  line  of  two  towns  was  held  conclusive  between  the 
parties,  and  fixed  the  town  and  county  in  which  the  locus  in  quo 
should  be  adjudged  to  be,  independent  of  the  powers  of  the  sur- 
rogate, judge  of  probate,  orphans'  court,  ordinary,  or  of  what- 
ever name,  coming  in  the  place  of  the  English  ecclesiastical 
courts,  created  and  regulated  by  statute.  Such  courts  in  this 
country  would  not,  by  the  general  adoption  of  the  common  law, 

peculiar  questions  raised.  Why  should  we  review  that  and  not  every  other  de- 
cision which  involves  the  interpretation  of  the  other  canons?  It  is  conceded 
that  when  jurisdiction  attaches  the  judoment  of  the  Church  court  is  conclusive 
as  to  purely  ecclesiastical  offenses.  It  should  be  equally  conclusive  upon  doubtful 
and  technical  questions  involving  a  criticism  of  the  canons,  even  though  they 
might  comprise  jurisdictional  facts.  It  requires  no  more  intellect,  information, 
or  honesty  to  decide  what  is  an  ecclesiastical  offense  than  to  determine  the 
authority  of  the  court  according  to  the  canons;  the  distinction  is  without 
a  difference. 

Civil  courts  have  duties  and  responsibilities  devolved  upon  them  and  a  well 
defined  jurisdiction  to  maintain.  The  Church  has  more  solemn  duties,  more 
weighty  responsibilities,  and  an  authority  granted  by  the  infinite  Author  of  all 
things.  We  shall  not  enter  in  and  "light  up  her  temple  from  unhallowed  fires." 
The  ministers  selected  to  sit  in  judgment  on  the  acts  of  a  brother  ought  to  be 
impartial  and  competent,  prompted,  as  they  doubtless  are,  by  the  teachings  of 
divine  revelation  and  the  kindly  influence  of  Christian  charity,  which  "sufl'ereth 
long  and  is  kind,  beareth  all  things,  believeth  all  things,  hopeth  all  things,  en- 
dureth  all  things." 

Having  given  this  case  a  most  careful  consideration,  our  deliberate  judg- 
ment is,  that  the  ecclesiastical  court  ought  not  to  be  restrained  by  the  mandate 
of  this  Court.      Chase  et  al.  v.  Cheney,  58  Ills.  536. 

Dutch  Church  of  Albany  v.  Bradford,  8  Cowen,  457. 
^  Hilly ard  v.  Grantham,  2  Ves.  24t). 

«  Hall  V.  Warren,  9  Ves.  605 ;  Ex  parte  Barnsley,  3  Atk.  168 ;  Bac.  Abr. 
Idiots,  etc. ;  B.  M' Donald  v.  Morton,  1  Mass.  R.  546 ;  \Vhite  v.  Palmer,  4  Mass. 
R.  147;   Stone  v.  Damon,  12  Mass.  R.  488;  1  Stark.  Evid.  258,  259. 


314  ECCLESIASTICAL  LAW. 

be  possessed  of  all  the  power  exercised  by  the  Englisli  ecclesias- 
tical courts,  for  want  of  a  hierarchy  fnrnisliing  tlie  apjiropriate 
officers  and  niachinezy  for  tlie  action  of  an  ecclesiastical  forum 
if  for  no  other  reason.  Their  powers  are,  however,  limited  and 
defined  by  law,  for  they  are  the  creatures  of  the  statutes  creating 
tliem ;  but  their  powers  are  defined  in  the  same  way,  and  hence 
they  are  treated  as  special,  limited,  and  inferior  jurisdictions  ; 
and  a  concurrence  of  circumstances  must  be  set  forth  and  estab- 
lished indicating  that  they  have  acted  within  the  scope  of  their 
specific  powers.  Thus,  in  setting  forth  a  surrogate's  decree  for 
distribution,  you  must  plead  that  the  same  surrogate  granted  the 
letters  of  administration,  for  such  surrogate  could  alone  make 
the  decree.^      In    proving  a  surrogate's  or  other  probate's  sale 

^  Curia,  per  Savage,  Chief-Justice:  The  defendant  makes  five  objections  to 
the  sufficiency  of  the  declaration:  First,  it  is  said  the  execution  should  have  been 
issued  against  Bristol  and  wife;  and  secondly,  that  interest  is  not  recoverable. 
If  these  objections  were  well  founded  the  sheriff  would  not,  therefore,  be  at 
liberty  to  suffer  an  escape  ;  nor  would  he  if  the  third  point  be  tenable.  The 
declaration  must  describe  correctly  the  record  and  proceedings  it  purports  to  set 
out;  and  if  the  record  or  proceedings  produced  on  trial  do  not  correspond  with 
the  description,  the  objection  may  be  taken  for  the  variance. 

But  it  is  objected,  fourthly,  that  the  declaration  does  not  give  jurisdiction  to 
the  surrogate,  and,  it  seems  to  me  that  this  objection  is  unanswerable.  The  con- 
struction given  to  the  act  (1  R.  L.  448,  §§  11,  12)  by  the  late  Chancellor  Kent 
is,  that  the  surrogate  granting  administration  has  power  to  call  the  administra- 
tor to  account.  I  think  jurisdiction  belongs  to  the  surrogate's  court  alone  which 
granted  the  administration.  It  is  not  averred  in  this  declaration  either  that  the 
surrogate  of  Columbia  County  grunted  administration  or  that  he  had  jurisdiction 
of  the  matter. 

The  rule  is,  that  the  pleading,  relying  on  a  proceeding  of  an  inferior  juris- 
diction, must  set  forth  the  facts  necessary  to  give  jurisdiction ;  and  it  may  then 
say,  taliter  processum  fuit,  etc.  Such  summary  proceedings  are  contrary  to  the 
course  of  the  common  law.  The  surrogate's  court  is  entirely  a  creature  of  the 
statute.  It  should  be  shown  to  the  Court  affirmatively,  therefore,  that  the  sur- 
rogate had  power  to  make  the  decree;  that  the  facts  upon  which  he  acted  gave 
him  jurisdiction  of  the  subject  matter  and  of  the  persons  before  him.  There  is 
nothing  in  the  la.st  objection  that  the  counts  of  the  declaration  are  repugnant. 
Dakin  v.  Hudson,  (!  Cowen,  224. 

The  object  of  this  bill  is' not  simply  discovery  but  relief.  It  seeks  to  trans- 
fer to  this  Court  the  jui-isdiction  of  the  whole  matter  of  account  between  the 
administrators  and  ne.xt  of  kin;  and  that,  too,  after  the  cognizance  of  the  case 
has  duly  attached  before  the  surrogate.  It  is  not  to  be  disputed  that  the  surro- 
gate is  clothed  with  powers  competent  to  settle  the  accounts  of  the  estate,  and 
to  decree  and  enforce  distribution  ;  and  there  is  no  reason  assigned  why  his  juris- 


JUDGiMENTS  AND  VERDICTS  AS  EVIDENCE.  315 

of  real  estate,  you  must  show  a  petition  and  an  account.'  So  tlie 
sentence  of  a  court  of  probate,  ordering  the  execution  of  a  ■will, 
'i&  prima  facie  evidence  that  it  "vvas  duly  proved,  and  the  grant  of 


diction  should  be  superseded,  and  the  entire  cognizance  of  the  case  transferred 
to  this  Court.  The  act  rehitive  to  the  court  of  probates,  etc.  (1  N.  R.  L.  448  §§ 
11,  12,  13),  declares  "that  it  shall  be  lawful  i'or  the  surrogate  granting  adminis- 
tration to  call  such  administrators  to  account,  etc.,  and  upon  hearing,  and  due 
consideration,  to  order  distribution,  etc.,  and  the  same  distribution  to  decree 
and  settle,  and  compel  such  administrators  to  observe  and  pay  the  same,  and  to 
enforce  such  decree  by  im()risonment,  etc.,  and  to  compel  witnesses  to  attend 
and  be  sworn,  etc.  The  surrogate  has  so  far  a  concurrent  jurisdiction  with  thi- 
Court;  and  without  some  special  reason  set  forth  in  the  bill,  I  am  not  inclined 
to  interfere  with  the  ordinary  exercise  of  such  a  power;  because  I  do  not  at 
present  perceive  that  such  an  interference  would  be  warranted.  There  is  noth- 
ing in  this  case  that  would  not  apply  to  every  case,  and  it  would  be  assuming 
exclusive  jurisdiction  over  the  subject  matter. 

But  if  this  be  considered  as  a  mere  bill  of  discovery,  in  aid  of  the  cause 
before  the  surrogate,  it  is  essentially  defective.  There  is  not  sufficient  ground 
laid  for  staying  a  trial  at  law,  or  a  proceeding  in  another  court.  The  bill  ought, 
to  have  charged  that  certain  facts  were  within  the  knowledge  of  the  defendants, 
and  that  a  disclosure  from  them  was  requisite.  The  bill  or  affidavit  to  support 
the  injunction  must  state  the  belief  of  the  plaintiff"  that  the  answer  would  fur- 
nish discovery  material  to  the  defense,  and  that  the  plaintiff"  had  not  the  means 
of  obtaining  the  facts  without  such  discovery.  This  was  the  doctrine  of  the  case 
of  Gelsion  v.  Hoyt,  1  John.  Ch.  Rep.  548,  and  it  is  supported  by  other  decisions. 
Appleyard  v.  Seton,  Ifi  Ves.  223;  Duvals  v.  Boss,  2  Munf  290.  A  general  de- 
murrer will  lie  to  a  bill  that  seeks  immaterial  discovery  (8  Bro.  P.  C.  101),  and  it 
is  not  material  unless  it  really  be  wanted  for  the  defense  at  law.  In  this  case 
the  plaintiff"  is  only  apprehensive  that  he  should  not  be  able  to  make  full  proof 
of  the  material  facts.  This  is  too  i'eeble  an  averment,  a  suggestion  of  too 
doubtful  an  import,  and  of  too  diffident  a  pretension  to  justify  an  injunction, 
staying  a  proceeding  before  a  competent  tribunal.  Probably,  if  the  question  on 
the  materiality  of  the  discovery  sought  had  arisen  on  a  demurrer  to  the  bill,  and 
an  injunction  staying  the  suit  at  law  in  the  mean  time  had  not  been  asked  for, 
the  materiality  of  the  discovery  might  not  have  been  very  nicely  examined. 
Lord  Thurlow  said,  in  such  a  case,  upon  demurrer  {Bishop  of  London  v.  Fytche 
]  Bro.  0.  C.  09),  that  "whether  it  was  material  or  not,  was  chiefly  for  the  plai?i- 
tiff  to  judge,  for  he  must  pay  the  cost  of  the  application.  It  would  remain  with, 
another  court  to  say  how  far  it  was  material.  Motion  denied.  Seymore  v.  Sey- 
more  et  al.  4  John  Ch.  410. 

^  By  the  Court,  Marcy,  J.  "However  extraordinary  or  erroneous  be  the  de- 
termination and  proceedings  of  a  court  of  limited  authority,  if  it  acts  within 
its  proper  jurisdiction  as  to  the  subject  matter,  place,  aiid  person,  its  judgment 
or  decree  can  not  be  impeached  or  invalidated  in  a  collateral  action.  Thi-s  case 
presents  the  question.  What  is  necessary  to  give  the  surrogate  jurisdiction  where 
real  estate  is  directed  to  be  sold  to  supply  a  deficiency  in  the  assets  to  pay  the 


316  ECCLESIASTICAL  LAW. 

letters  of  administration  by  a  probate  court  is  xnima  facie  evi- 
dence of  the  death  of  the  testator,  or  intestate,  and  can  not  be 
collaterally  assailed ;   neither  can  an  order   admitting  a  will  to 

debts  of  a  testator  or  intestate?  The  argument  on  behalf  of  the  defendant 
seemed  to  proceed  on  the  assumption  that  an  actual  deficiency  in  the  assets 
must  exist  in  order  to  confer  jurisdiction.  By  an  examination  of  the  act  rela- 
tive to  the  Court  of  Probate  (1  R.  L.  450,  §  23),  it  will  be  found  that  the  surro- 
gate, if  he  be  the  officer  for  the  county  in  which  probate  of  the  will  or  letters  of 
administration  were  granted,  is  required  to  act  on  the  suggestion  of  an  adminis- 
trator or  executor  of  a  deficiency  of  assets,  and  on  receiving  an  account  of  the 
personal  estate  and  debts  of  the  deceased.  He  thus  acquires  jurisdiction  of  the 
subject  matter.  Notice  is  then  required  to  be  given  for  persons  interested  to 
show  cause  against  granting  the  order  for  the  sale  of  the  real  estate.  After 
hearing  the  proofs  and  allegations  of  the  executors  or  administrators  and  other 
persons  interested  in  the  estate,  the  surrogate  is  to  examine  into  and  determine 
the  question  whether  there  is  personal  property  sufficient  to  pay  the  debts  or  not; 
and  if  he  finds  there  is  not  enough  for  that  purpose  he  orders  a  sale.  In  decid- 
ing upon  the  sufficiency  of  the  assets  he  acts  judicially,  and  an  error  in  this  mat- 
ter does  not  affect  his  jurisdiction.  It  would  no  more  invalidate  his  subsequent 
proceedings  than  a  mistake  as  to  any  other  matter  submitted  to  his  examination 
and  decision.  He  has  not  only  autliority,  but  it  is  his  duty  to  settle  that  ques- 
tion. If  he  errs  his  determination  may  be  reviewed  and  reversed  on  an  appeal; 
iiis  proceedings  are  not  void,  but  voidable  only.  3  Cowen,  '20(i.  It  was  not  made 
a  question  but  that  the  surrogate  of  Jefferson  County  was  the  proper  officer  to 
entertain  the  application  and  to  make  the  order  for  the  sale  in  case  a  sale  was 
proper;  but  it  was  contended  that  all  the  administrators  should  have  joined  in 
tlie  afjplication.  When  there  are  several  executors,  the  acts  of  any  one  are 
deemed  in  law  the  acts  of  all.  2  Ves.  sen.  207;  Toller,  324.  A  distinction  in 
this  respect  between  executors  and  administrators  is  found  in  some  of  the  books. 
Comyns  does  not  notice  it,  and  I  believe  if  it  ever  was  established  it  is  now  ex- 
]iloded.  It  was  denied  in  the  case  of  Jacomh  v.  Ilm-wood,  2  Ves.  sen.  23.'),  and 
this  Court  has  passed  on  that  question  and  said  that  executors  and  administrators 
stand  on  the  same  ground  and  their  j)owers  and  responsibilities  in  respect  to  each 
other  are  the  same.  Douglass  v.  Ratterlee,  11  Johns.  Rep.  16;  Murray  v. 
B/aichford,  1  Wendell,  583.  If  these  cases  were  not  sufficient  to  authorize  us 
lo  disregard  the  supposed  difference,  it  would,  I  apprehend,  be  very  difficult  to 
sustain  it  by  any  thing  like  substantial  reasons.  The  nature  of  their  offices,  cer- 
tainly so  far  as  the  personal  estate  is  concerned,  is  so  much  alike  that  it  affords 
no  occasion  to  apply  to  the  one,  in  deciding  upon  their  acts,  a  rule  which  is  in- 
a[)plicable  to  the  other. 

The  phraseology  of  the  section  directing  the  proceeding  when  the  real  estate 
is  lo  be  sold  would  justify  an  application  by  one  administrator  if  the  general 
rule  was,  that  wliere  there  were  several  they  must  act  conjointly.  It  is  that 
"  when  any  administrator  or  executor,  etc.,  shall  discover  or  suspect"  a  deficiency 
in  tlie  personal  estate  of  his  ^ostator  or  intestate  to  pay  the  debts,  etc.,  he  may 
ninkc  the  application  in  tlie  manner  therein  provided.      Upon  general  principles, 


JUDGMENTS  AND  VERDICTS  AS  EVIDENCE.  317 

probate  be  collaterally  resisted  by  showing  that  the  will  is  a  for- 
gery and  that  the  testator  made  another  testament  and  appointed 
another  executor.  The  error  in  such  a  case  can  only  be  cor- 
rected by  an  appeal  from  the  order  admitting  the  will  to  probate, 
or  other  direct  proceeding.^ 

It  would  seem,  that  between  the  parties  to  an  ecclesiastical 
suit  or  trial,  any  point  expressly  determined  would  be  admissible 
in  evidence  in  a  civil  suit  in  our  temporal  courts,  notwithstanding 
the  sentence  did  not  confer  or  take  away  any  legal  character,  and 
notwithstanding  it  was  not  a  sentence  upon  the  main  objects  of 
the  suit,  but  upon  some  subordinate  matter  raised  in  the  plead- 
ings or  upon  the  trial.  Cases  of  this  nature  have  received  much 
consideration  in  the  civil  courts;  but  it  has  been  held,  that  the 
sentence  of  an  ecclesiastical  court  directly  upon  a  point  within 
its  peculiar  jurisdiction  is  not,  as  in  civil  cases,  conclusive  on 
the  same  matter,  coming  incidentally  into  question  in  a  criminal 

and  by  the  construction  of  the  statute,  I  am  satisfied  that  a  single  administrator, 
when  he  has  an  associate,  has  the  right  to  call  in  the  aid  of  the  surrogate  of  the 
proper  county  to  sell  real  estate  to  supply  the  deficiency  in  the  personal  estate  to 
pay  the  debts  of  the  intestate.  Some  minor  questions  are  raised  in  this  case 
upon  which  we  ought  to  express  our  views.  It  is  certain  that  an  unreasonable 
length  of  time  elapsed  between  the  time  of  granting  the  letters  of  administration 
and  the  period  when  the  proceedings  were  instituted  for  the  sale  of  the  real 
property.  This  might  have  been,  and,  without  some  explanation  should  have 
been,  a  reason  for  the  surrogate  to  reject  the  application.  The  law  fixes  no  defi- 
nite limits  between  which  the  proceedings  must  be  commenced;  we  can  not, 
therefore,  say  that  they  are  void.  The  time  is  left  to  the  discretion  of  the  officer, 
and  his  error,  if  any,  in  relation  to  it,  can  be  corrected  only  on  appeal.  The 
judge  erred,  it  is  said,  by  receiving  an  exemplified  copy  of  the  letters  of  admin- 
istration without  evidence  or  suggestion  of  the  loss  of  the  original.  Where  the 
judgment,  decree,  or  proceeding  of  a  court  of  record  is  to  be  proved,  it  may  be 
done  by  producing  the  original  or  a  copy  duly  authenticated.  Starkie's  Ev.  pt. . 
2,  151.  This  is  the  general  rule.  I  can  not  find  that  there  is,  nor  do  I  know 
why  there  should  be,  un  exception  to  it  in  relation  to  the  records  of  surrogates' 
courts.  The  letters  of  administration  granted  to  M'Kee  and  Doolittle  were  re- 
corded (perhaps  I  might  say  were  copies  of  the  record).  Lord  Ellcnborough, 
in  the  case  of  Aklen  v.  Keddell,  8  East,  187,  said  that  the  letters  of  administra- 
tion were  only  a  copy  of  the  original  minutes  of  the  court.  In  that  case  the 
book  of  acts  directing  letters  to  be  issued  was  received  as  evidence  that  letters 
had  been  granted.  I  think  the  judge  decided  correctly  in  receiving  the  exem- 
plification of  the  letters  of  administration  in  this  case.  Jackson  v.  Bobinson, 
4  Wendell,  441. 

^  3Ioore  v.  Janners  Admins.  Monroe,  42-45. 


318  ECCLESIASTICAL  LAW. 

suit ;  for  proceedings  in  matters  of  crime,  and  especially  of 
felony,  ffdl  under  a  different  consideration  fi'om  civil  suits,  first, 
because  tke  parties  are  not  the  same,  for  the  people  or  the  State 
are  intrusted  with  the  prosecution  of  public  offenses  and  the 
prosecution  is  carried  on  in  their  name  ;  second,  ecclesiastical 
courts  can  not  be  admitted  to  defend,  examine  witnesses,  and 
exercise  the  same  jurisdiction  that  is  exercised  by  our  criminal 
courts.  Such  powers  would  tend  to  give  the  spiritual  courts, 
which  are  not  permitted  to  exercise  any  judicial  cognizance  in 
matters  of  crime,  an  immediate  influence  in  trials  for  offenses  and 
draw  the  decision  from  the  course  of  the  common  law  to  which  it 
solely  and  peculiarly  belongs.  For  it  is  evident  that  the  ground  of 
the  judicial  powers  recognized  as  belonging  to  the  Church  is  merely 
of  a  spiritual  consideration,  and  they  are  therefore  addressed 
to  the  conscience  of  the  party  ;  but  crimes  and  misdemeanors  are 
wholly  and  in  all  their  parts  of  temporal  cognizance  alone.  The 
temporal  courts  alone  should  expound  the  law  and  judge  of  the 
crime  and  its  proofs,  so  far  as  determining  the  legal  guilt  or  inno- 
cence of  the  accused,  and  in  doing  so  they  must  see  with  their 
own  eyes  and  try  by  their  own  rules — that  is,  by  rules  pre- 
scribed by  law. 

Judgments  or  sentences  of  ecclesiastical  courts,  like  other 
judicial  proceedings,  may  be  impeached,  even  when  they  come 
up  collaterally,  by  evidence  of  fraud  or  collusion,  and  such  evi- 
dence is  admissible  ;  for  it  is  said,  that  fraud  is  an  intrinsic  col- 
lateral act  which  vitiates  the  most  solemn  proceedings  ;  or,  in  the 
language  of  Lord  Coke,  ^'It  avoids  all  judicial  acts,  ecclesiastical 
and  temporal,  and  that  although  it  was  not  permitted  to  show  that 
the  ecclesiastical  court  was  mistaken,  it  might  be  shown  that  it 
was  misled.^  So  where  a  sentence  has  been  pronounced  in  an 
ecclesiastical  court,  and  notice  has  not  been  given  to  the  party 
to  be  affected  by  the  decree  or  sentence,  the  sentence  will  not  be 
enforced,  if  the  jurisdiction,  when  the  matters  have  not  been 
duly  submitted,  finds  the  whole  proceeding  is  treated  as  a  mere 
nullity,  having  no  binding  obligation  and  entitled  to  no  considera- 
tion or  respect.^ 

1  11  State  Trials,  2C2. 

*  Considering  it  as  settled,  then,  tliiit  the  Freneli  tribunal  had  jurisdiction  of 
property  seized  under  a  municipal   regulation  within  the  territorial  jurisdiction 


FOREIGN  JUDGMENTS.  319 

CHAPTER  IV. 

THE   ADMISSIBILITY   AND   EFFECT   OF   FOREIGN   JUDGMENTS. 

It  may  now  be  assumed  as  tlie  settled  doctrine,  tliat  all  sen- 
tences of  foreign  courts  of  competent  jurisdiction  as  to  proceed- 
ings 171  rem  are  to  be  regarded  as  the}'  are  regarded  in  the 
country  or  under  the  goyernment  where  rendered.  Thus,  a  sen- 
tence of  condemnation,  if  binding  in  one  country  upon  the  rights 
of  third  persons,  will  be  equally  binding  here,  as  well  on  third 
persons  as  on  the  parties  to  the  original  suit ;  and  it  is  conclusive 
in  all  questions  of  prize  when  offered  in  evidence  in  actions  upon 
policies  of  insurance,  and  on  every  subject  immediately  and 
properly  within  the  jurisdiction  of  such  foreign  court,  and  upon 
which  they  have  professed  to  decide  judicially.  When  such 
foreign  court  has   proceeded  to  adjudicate  on  certain  property 

of  the  government  of  St.  Domingo,  it  only  remains  for  me  to  say  whether  it  will 
make  any  difference  if,  as  now  appears  to  have  been  the  case,  the  vessel  were 
taken  on  the  high  seas  or  more  than  two  leagues  from  the  coast.  If  the  res  can 
be  proceeded  against  when  not  in  possession  or  control  of  the  court,  I  am  not 
able  to  perceive  how  it  is  material  whether  the  capture  were  made  within  or  be- 
yond the  jurisdictional  limits  of  France,  or  in  the  exercise  of  a  belligerent  or 
municipal  right.  By  a  seizure  on  the  high  seas  she  interfered  with  the  jurisdic- 
tion of  no  other  nation,  the  authority  there  being  concurrent.  It  would  seem, 
also,  that  if  jurisdiction  be  at  all  permitted  where  the  thing  is  elsewhere,  the 
court  exercising  it  must  necessarily  decide,  and  that  ultimately,  or  subject  only 
to  the  review  of  a  superior  tribunal  of  its  own  State,  whether,  in  the  particular 
case,  she  had  jurisdiction,  if  any  objection  be  made  to  it.  And  although  it  be 
now  stated  as  a  reason  why  we  should  examine  whether  a  jurisdiction  was  right- 
fully exercised  over  The  Sea  Floicer,  that  she  was  captured  more  than  two 
leagues  at  sea,  who  can  say  that  this  very  allegation,  if  it  had  been  essential, 
may  not  have  been  urged  before  the  French  court  and  the  fact  decided  in  the 
negative?  And  if  so,  why  should  not  its  decision  be  as  conclusive  on  this  as  on 
any  other  point?  The  judge  must  have  had  a  right  to  dispose  of  every  question 
which  was  made  on  behalf  of  the  owner  of  the  property,  whether  It  related  to 
his  own  jurisdiction,  or  arose  out  of  the  law  of  nations,  or  out  of  the  French  de- 
crees, or  In  any  other  way;  and  even  if  the  reasons  of  his  judgment  should  not 
appear  satisfactory,  it  would  be  no  reason  for  a  foreign  court  to  review  his  pro- 
ceedings or  not  to  consider  his  sentence  as  conclusive  on  the  property.  Hudson 
V.  Gieestier,  2  Curtis,  407. 

See,  also,  Rose  v.  Himely,  ibid.  87,  where  a  different  opinion  is  expressed 
by  Marshall,  C.  J. 


320  ECCLESIASTICAL  LAW. 

upon  the  ground  that  such  property  is  an  enemy's  property,  such 
adjudication  is  conclusive  that  the  property  belongs  to  enemies, 
not  only  for  the  immediate  purpose  of  such  a  sentence,  but  it  is 
binding  on  all  courts  and  against  all  persons.^  But  where  the 
sentence  or  judgment  professes  to  be  made  on  grounds  which  are 
particularly  set  forth  in  the  judgment  or  sentence,  but  which  ap 
pears  on  the  face  of  the  record  not  to  warrant  the  condemnation, 
the  sentence  will  not  be  conclusive  as  to  such  facts.  ^  Sentences 
of  condemnation,  however,  pronounced  by  foreign  courts  of 
prize  are  admissible  only  where  such  courts  are  constituted  ac- 
cording to  the  law  of  nations  and  exercise  their  functions  either 
in  a  belligerent  or  in  the  country  of  a  co-belligerent  ally  in  the 
war.  It  has,  therefore,  been  determined  that  a  sentence  pro- 
nounced by  the  authority  of  the  capturing  power  within  the 
dominion  of  a  neutral  country  to  which  the  prize  has  been  taken 
is  illegal,  and  consequently  would  not  be  admissible  evidence  to 
falsify  the  warrant  of  neutrality.^  If  the  foreign  court  had  no 
jurisdiction  in  the  case,  or  if  the  proceedings  were  instituted  in 
fraud  of  the  rights  of  sovereignty,  or  for  the  purpose  of  thwart- 
ing justice,  such  fact  may  be  proved  in  order  to  render  such 
sentence  inoperative  and  void. 

Some  difference  of  opinion  has  prevailed  in  respect  to  the 
effect  of  foreign  judgments  where  the  action  is  founded  on  sucli 
judgment,  but  it  is  now  clearly  established  that  such  judgment  is 
prima  facie  evidence,  and  the  defendant  may  impeach  it  where 
the  proceedings  arc  in  personam  by  showing  that  it  was  in'egularly 
obtained,  or,  indeed  upon  almost  any  ground  which  Avould  have 
constituted  a  defense  to  the  original  action.'*     But  a  different  rule 


^  Kinder sle]i  v.  Chase,  Park,  Ins.  8  ed.  Y43. 

2  Culver  V.  Evil,  1  Term  R.  5:i3 ;  8  Term  R.  444. 

*  2  Phillips's  Evidence,  ■'')3. 

*  The  sentence  of  a  foreign  Court  of  Admiralty  is  only  prima  facie  evidence 
of  the  facts  on  which  the  con<!enination  ])ur])orts  to  have  been  founded;  and  in 
a  collateral  action  such  evidence  may  bo  rebutted  by  showing  that  no  such  fact 
did  in  reality  exist.  Francis  v.  Ocean  Ins.  Co.,  6  Cowen,  404  ;  S.  C.  in  error, 
2  Wendell,  64.  The  court  will  not  hear  an  argument  to  show  that  such  a  sen- 
tence is  conclusive  of  the  facts  on  which  the  foreign  court  proceeded.  N.  Y. 
Fire  Ins.  Co.  v.  DeWolf,  2  Cowen,  i3<). 

The  (juestion  is  whether  St  Lucar  was,  at  the  time  of  the  capture,  a  block- 
aded port  within  the  exception  in  the  policy.     This  is  a  matter  of  fact,  depend- 


FOREIGN  JUDGMENTS.  321 

prevails  under  the  Constitution  and  laws  of  tlic  United  States, 
for  full  faith  and  credit  are  given  to  the  judgments  of  a  State 
court  when  in  the  courts  of  another  State  they  receive  the  same 
faith  and  credit  to  which  they  w^ere  entitled  in  the  State  where 
they  were  pronounced.  This  rule  does  not  depend  upon  the 
doctrine  of  State  comity  between  States,  but  upon  the  force  and 

ing  on  a  contract  between  our  own  citizens.  It  has  nothing  to  do  with  any 
conflict  between  belligerent  and  neutral  pretensions.  It  does  not  necessarily  in- 
volve any  examination  into  tlie  just  extent  of  these  pretensions.  It  is  a  plain 
inquiry  into  the  existence  of  a  fact,  namely,  was  here  a  loss  chargeable  to  the 
existence  of  a  blockade?  A  blockade  may  exist  in  fact,  and  yet  a  capture  and 
condemnation  for  the  breach  of  it  be  unjust  from  the  want  of  knowledge  in  the 
neutral  of  the  existence  of  the  blockade.  This  case,  then,  need  not,  and  ought 
not  to,  awaken  any  prejudice  or  bias  one  way  or  the  other  as  respects  the  object 
of  the  present  suit,  and  there  are  no  considerations  which  ought  to  have  induced 
a  jury  to  require  more  strict  evidence  of  this  than  of  any  other  ordinary  ques- 
tion of  fact.  The  evidence  of  a  blockade  of  St.  I.ucar  existing  de  facto  at  the 
time  of  the  capture  consisted  of  the  following  items,  najnely:  The  sentence  of 
condemnation  which  proceeded  directly  on  the  ground  of  that  fact,  and  this 
sentence  is  prima  fade,  though  not  conclusive,  evidence  of  the  fact  of  the 
blockade.  This  effect  of  the  foreign  sentence  was  conceded  by  the  counsel  and 
the  court  upon  the  final  decision  in  the  Court  of  Errors  of  the  greatly  litigated 
question  touching  the  conclusiveness  of  foreign  sentences.  2  Johns.  Cas.  451; 
Radclif  v.  Vnited  Ins.  Co.,  9  John.  281,  282. 

The  sentence  of  condemnation  by  the  Court  of  Vice-Admiralty  contains  the 
express  allegation  that  St.  Lucar  was  blockaded,  not  nominally,  but  de  facto, 
and  the  vessel  and  cargo  were  condemned  for  an  attempt  to  violate  it.  This 
sentence  will  be  acknowledged  to  be  presumptive  ov  prima  facie  evidence  of  the 
fact,  and  it  stands  as  good  proof  until  that  presumption  be  destroyed.  The  tes- 
timony delivered  at  the  trial  appears  to  me  to  confirm  it.  The  letter  of  Mr. 
Canning  to  Mr.  Pinkney,  of  the  8th  of  January,  1808,  would  have  still  further 
corroborated  the  proof  of  the  blockade,  as  it  was  decisive  evidence  of  the  inten- 
tion of  the  English  Government  to  include  St.  Lucar  in  the  blockade  of  Cadiz, 
and  to  carry  the  blockade  at  the  entrance  of  those  ports  into  the  most  vigorous 
effect.  This  letter  I  think  ought  to  have  been  admitted  in  evidence.  It  appears 
to  have  been  printed  at  the  city  of  Washington  by  persons  who  the  defendants 
offered  to  show  were  printers  to  Congress,  and  to  have  composed  a  part  of  a  set 
of  public  documents  transmitted  to  Congress  by  the  President  of  the  United 
States.  A  greater  strictness  of  proof  in  respect  to  such  public  matters  of  State, 
and  when  they  are  introduced  collaterally  and  not  as  matters  of  fact  in  issue, 
would  be  inconvenient,  and  is  not  now,  in  practice,  required.  Thus,  in  the  case 
of  The  King  v.  Holt,  5  Term  Rep.  43fi,  the  K.  B.  held,  that  the  London  Gazette 
was  prima  /ac/e  evidence  of  matters  of  State ;  and  in  Talbot  v.  Seaman, 
1  Cranch,  38,  a  French  decree  was  allowed  by  the  Supreme  Court  of  the  United 
States  to  be  read  upon  no  higher  proof  than  that  which  attended  the  letter  in 
question.     Radclif^  v.   United  Ins.  Co.,  7  John.  50. 


322  ECCLESIASTICAL  LAW. 

effect  of  the  Constitution  and  laws  of  the  United  States.  It  dif- 
fers from  the  rules  of  comity  which  may  be  restraints  upon  a 
court  in  tlie  exercise  of  an  authority  which  it  actually  possesses 
in  that  it  is  mandatory  upon  the  States,  whereas  State  comity  is 
self  imposed.^ 

^  And  this  brings  ns  to  the  question  which  has  been  so  elaborately  discussed, 
whether  by  the  comity  of  nations  and  between  these  States  the  corporations  of 
one  State  are  permitted  to  make  contracts  in  another.  It  is  needless  to  enu- 
merate here  tlie  instances  in  which,  by  the  general  practice  of  civilized  coun- 
tries, the  laws  of  the  one  will,  by  the  comity  of  nations,  be  recognized  and 
executed  in  another  where  the  right  of  individuals  is  concerned.  The  cases  of 
contracts  made  in  a  foreign  country  are  familiar  examples,  and  courts  of  justice 
have  always  expounded  and  executed  them  according  to  the  laws  of  the  place  in 
which  they  were  made,  provided  that  law  was  not  repugnant  to  the  laws  or 
policy  of  their  own  country.  The  comity  thus  extended  to  other  nations  is  no 
impeachment  of  sovereignty  ;  it  is  the  voluntary  act  of  the  nation  by  which  it  is 
offered,  and  is  inadmissible  when  contrary  to  its  policy  or  prejudicial  to  its  in- 
terests. But  it  contributes  so  largely  to  promote  justice  between  individuals 
iind  to  produce  a  friendly  intercourse  between  sovereignties  to  which  they  be- 
long, that  courts  of  justice  have  continually  acted  upon  it  as  a  part  of  the  volun- 
tary law  of  nations.  It  is  truly  said  in  Story's  Conflict  of  Laws,  30,  37,  that 
"  In  the  silence  of  any  positive  rule  affirming  or  denying  or  restraining  the 
operation  of  foreign  laws,  courts  of  justice  presume  the  tacit  adoption  of  them 
by  their  own  government,  unless  they  are  repugnant  to  its  policy  or  prejudicial 
to  its  interests.  It  is  not  the  comity  of  the  courts,  but  the  comity  of  the  nation, 
which  is  administered  and  ascertained  in  the  same  way  and  guided  by  the  same 
reasoning  by  which  all  other  principles  of  municipal  law  are  ascertained 
and  guided." 

Adopting,  as  we  do,  the  principle  here  stated,  we  proceed  to  inquire  whether, 
by  the  comity  of  nations,  foreign  corporations  are  permitted  to  make  contracts 
within  their  jurisdiction,  and  we  can  perceive  no  sufficient  reason  for  excluding 
them  when  they  are  not  contrary  to  the  known  policy  of  the  State  or  injurious 
to  its  interests.  It  is  nothing  more  than  the  admission  of  the  existence  of  an 
arfificiiil  person  created  by  the  law  of  another  State  and  clothed  with  the  power 
of  making  certain  contracts.  It  is  but  tlie  usual  comity  of  recognizing  the  law 
of  another  State.  In  England,  from  which  we  have  received  our  general  prin- 
ciples of  jurisprudence,  no  doubt  appears  to  have  been  entertained  of  the  right 
of  a  foreign  corporation  to  sue  in  its  courts  since  the  case  of  Ilenriqiies  v.  The 
Dutch  West  India  Company,  decided  in  172!».  2  L.  Raymond,  15,  32.  And  it 
is  a  matter  of  history  which  this  court  is  bound  to  notice,  that  corporations 
created  in  this  country  have  been  in  the  open  praclieo,  for  many  years  past,  of 
making  contracts  in  England  of  various  kinds  and  to  very  large  amounts,  and 
we  have  never  seen  a  doubt  suggested  there  of  the  validity  of  these  contracts  by 
any  court  or  any  jurist.  It  is  impossible  to  imagine  that  any  court  in  the  United 
States  would  refuse  to  execute  a  contract  by  which  an  American  corporation 
hiid  borrowed  money  in   England:    yet  if  the  contracts  of  corporations  made 


FOREIGN  JUDGMENTS.  323 

Much  controversy  has  existed  as  to  whether  foreign  sentences 
affecting  the  general  capacity  or  status  of  persons,  or  sentences 
concerning  marriage  or  divorce,   when   adjudicated  upon   by  a 

out  of  the  State  by  which  they  were  created  are  void,  even  contracts  of  tliat 
description  could  not  be  enforced. 

It  has,  however,  been  supposed  that  the  rules  of  comity  between  foreign 
nations  do  not  apply  to  the  States  of  this  Union;  that  they  extend  to  one  an- 
other no  other  rights  than  those  which  are  given  by  the  Constitution  of  the 
United  States;  and  that  the  courts  of  the  general  government  are  not  at  liberty 
to  presume,  in  the  absence  of  all  legislation  on  the  suljject,  that  a  State  has 
adopted  the  comity  of  nations  towards  the  other  States,  as  a  part  of  its  jurispru- 
dence; or  that  it  aclcnowledges  any  rights  but  those  that  are  secured  by  the 
Constitution  of  the  United  States.  The  Court  think  otherwise.  The  intimate 
union  of  these  States,  as  members  of  the  same  great  political  family,  the  deep 
and  vital  interests  which  bind  them  so  clo.sely  together,  should  lead  us,  in  the 
absence  of  proof  to  the  contrary,  to  presume  a  greater  degree  of  comity  and 
friendship  and  kindness  towards  one  another  than  we  should  be  authorized  to 
presume  between  foreign  nations.  And  when  (as  without  doubt  must  occasion- 
ally happen),  the  interest  or  policy  of  any  State  requires  it  to  restrict  the  rule,  it 
has  but  to  declare  its  will,  and  the  legal  presumption  is  at  once  at  an  end.  But 
until  this  is  done,  upon  what  grounds  could  this  Court  refuse  to  administer  the 
law  of  infprnational  comity  between  these  States?  They  are  sovereign  States, 
and  the  history  of  the  past,  and  the  events  which  are  daily  occurring,  furnish 
the  strongest  evidence  that  they  have  adopted  towards  each  other  the  laws  of 
comity  in  their  fullest  extent.  Money  is  frequently  borrowed  in  one  State,  by  a 
corporation  created  in  another.  The  numerous  banks  established  by  different 
States  are  in  the  constant  habit  of  contracting  and  dealing  with  one  another. 
Agencies  for  corporations  engaged  in  the  business  of  insurance  and  of  banking 
have  been  established  in  other  States,  and  suffered  to  make  contracts  without 
any  objection  on  the  part  of  the  State  authorities.  These  usages  of  commerce 
and  trade  have  been  so  general  and  public,  and  have  been  practiced  for  so  long 
a  period  of  time,  and  are  so  generally  acquiesced  in  by  the  States,  that  the  Court 
can  not  overlook  them  when  a  question  like  the  one  before  us  is  under  consider- 
ation. The  silence  of  the  State  authorities,  while  these  events  are  passing  be- 
fore them,  show  their  assent  to  the  ordinary  laws  of  comity  which  permit  a  cor- 
poration to  make  contracts  in  another  State.  But  we  are  not  left  to  infer  it  from 
general  usages  of  trade,  and  the  silent  acquiescence  of  the  States.  It  appears 
from  the  cases  cited  in  the  argument,  which  it  is  unnecessary  to  recapitulate  in 
this  opinion,  that  it  has  been  decided  in  many  of  the  State  courts,  we  believe  in 
all  of  them  where  the  question  has  arisen,  that  a  corporation  of  one  State  may  sue 
in  the  courts  of  another.  If  it  may  sue,  why  not  make  a  contract?  The  right 
to  sue  is  one  of  the  powers  which  it  derives  from  its  charter.  If  the  courts  of 
another  country  tiikQ  notice  of  its  existence  as  a  corporation,  so  far  as  to  allow 
it  to  maintain  a  suit,  and  permit  it  to  exercise  that  power,  why  should  not  its 
existence  be  recognized  for  other  purposes,  and  the  corporation  permitted  to  ex- 
ercise another  power  which  is  given  to  it  by  the  same  law  and  the  same  sover- 


32  t  ECCLESIASTICAL  LAW. 

foreign  tribunal  ought  to  be  conclusive.  In  regard  to  marriages 
the  general  principle  is,  that  between  persons  sui  juris  marriage 
is  to  be  decided  by  the  law  of  tlie  place  where  it  is  celebrated. 

eignty,  where  the  last  mentioned  power  does  not  come  in  conflict  with  the 
interest  or  policy  of  the  State?  There  is  certainly  nothing  in  the  nature 
find  character  of  a  corporation  which  could  justly  lead  to  such  a  distinction, 
and  which  should  extend  to  it  the  comity  of  suit  and  refuse  to  it  the  comity 
of  contract.  If  it  is  allowed  to  sue,  it  would,  of  course,  be  permitted  to  com- 
promise, if  it  thought  proper,  with  its  debtor,  to  give  him  time  to  accept  some, 
thing  else  in  satlsfitction,  to  give  him  a  release,  and  to  employ  an  attorney  for 
itself  to  conduct  its  suit.  These  are  all  matters  of  contract,  and  yet  are  so  inti- 
mately connected  with  the  right  to  sue  that  the  latter  could  not  be  effectually 
exercised  if  the  former  were  denied.  We  turn  in  the  next  place  to  the  legisla- 
tion of  the  States.  So  far  as  any  of  them  have  acted  on  this  subject,  it  is 
evident  they  have  regarded  the  comity  of  contract,  as  well  as  the  comity  of  suit, 
to  be  a  part  of  tlie  law  of  the  State  unless  restricted  by  statute.  Thus,  a  law 
was  passed  by  the  State  of  Pennsylvania,  March  10,  1810,  which  prohibited  for- 
eipfners  and  foreign  corporations  from  making  contracts  of  insurance  against  fire, 
and  other  losses  mentioned  in  the  law.  In  New  York,  also,  a  law  was  passed 
March  18,  1814,  which  prohibited  foreigners  and  foreign  corporations  from  mak" 
ing  in  that  State  insurance  against  fire,  and  by  another  law  passed  April  21, 
1818.  corporations  chartered  by  other  States  are  prohibited  from  keeping  any 
office  of  deposit  for  the  purpose  of  discounting  promissory  notes  or  carrying 
on  any  kind  of  business  which  incorporated  banks  are  authorized  by  law  to 
carry  on.  The  pi'ohlbition  of  certain  specific  contracts  by  corporations  in  these 
laws  is  by  necessary  implication  an  admission  that  other  contracts  may  be  made 
by  foreign  corporations  in  Pennsylvania  and  New  York,  and  that  no  legislative 
permission  is  necessary  to  give  them  validity.  And  the  language  of  these  pro- 
hibitory acts  most  clearly  indicates  that  the  contracts  forbidden  by  them  might 
lawfully  have  been  made  before  these  laws  were  passed. 

Maryland  has  gone  still  further  in  recognizing  this  right.  By  a  law  passed  in 
183-1,  that  State  has  prescribed  the  manner  in  which  corporations  not  chartered 
by  the  State,  "which  shall  transact  or  shall  have  transacted  business"  in  the 
State,  may  be  sued  in  its  courts  upon  contracts  made  in  the  State.  The  law  as- 
sumes in  the  clearest  manner  tliat  such  contracts  were  valid,  and  provides  a 
remedv  by  which  to  enforce  them. 

In  the  legislation  of  Congress  also,  where  the  States  and  the  people  of  the 
several  States  are  all  represented,  we  shall  find  proof  of  the  general  understand- 
ing in  the  United  States  that  by  the  law  of  comity  among  the  States,  the  corpo- 
rations chartered  by  one  were  allowed  to  make  contracts  in  the  others.  By  the 
Act  of  Congress  of  June  2.3,  183G,  4  Story's  Laws,  244.'),  regulating  the  deposits 
of  public  money,  the  secretary  of  the  treasury  was  authorized  to  make  arrange- 
ments with  some  bank  or  banks  to  establish  iin  agency  in  the  States  and  terri- 
tories where  there  were  no  banks,  or  none  that  could  be  employed  as  a  public 
depository,  to  receive  and  disburse  the  public  money  which  might  be  directed  to 
be  there  deposited.     Now  if  the  proposition   be  true  that  a  corporation  created 


FOREIGN  JUDGMENTS.  325 

It  has  a  legal  ubiquity  of  obligation.  If  valid  where  celebrated, 
it  is  valid  every-where.  To  this  rule,  however,  there  is  an  ac- 
knowledged exception,  arising  out  of  marriages  involving  incest 
and  polygamy,  which  are  prohibited  by  the  law  of  the  land  fi-om 
motives  of  public  policy.  Such  marriages  when  celebrated 
abroad  or  in  foreign  countries  do  not  receive  the  sanction  of  our 
municipal  laws  or  the  courts  of  the  land,  but  they  are  regarded 
with  great  disfavor.  The  sentence  of  a  foreign  court  directly 
establishing  a  mai'riage  in  that  country  would  be  conclusive  in 
any  of  our  courts  here  on  the  validity  of  the  marriage.  And  it 
seems  that  a  decree  of  divorce  granted  in  the  country  wdiere  the 
marriage  was  solemnized  would  at  least  carry  with  it  great 
authority  in  this  coiintry.'  Some  of  the  most  embarrassing 
questions  belonging  to  international  jurisprudence  "  arise,"  says 
Mr.  Justice  ^'tory,  ''under  the  head  of  marriage  and  divorce. 
Suppose,  for  instance,  a  marriage  celebrated  in  England,  where 
marriage  is  indissoluble,  and  a  divorce  obtained  in  Scotland  a 
vmcido  matrimonii  as  may  be  for  adultery  under  its  laws,  Avill 
that  divorce  be  operative  in  England  so  as  to  authorize  a  new^ 
marriage  here  by  either  party?  Suppose  a  marriage  in  Massa- 
chusetts, where  a  divorce  may  be  had  for  adultery,  will  a  divorce 
obtained  in  another  State  for  a  cause  unknown  to  the  laws  of 
Massachusetts  be  held  valid  there  ?     If  in  each  of  these  cases  the 

by  one  State  can  not  make  a  valid  contract  in  another,  the  contracts  made 
through  this  agency  in  behalf  of  the  bank  out  of  the  State  where  the  bank  was 
chartered  would  all  be  void,  both  as  respected  the  contracts  with  the  govern- 
ment and  the  individuals  who  dealt  with  it.  How  could  such  an  agency,  upon 
the  principles  now  contended  for,  have  performed  any  of  the  duties  for  which  it 
was  established?  But  it  can  not  be  necessary  to  pursue  the  argument  further. 
We  think  it  is  well  settled  that  by  the  law  of  comity  among  nations,  a  corpora- 
tion created  by  one  sovereignty  is  permitted  to  make  contracts  in  another,  and  to 
sue  in  its  courts;  and  that  the  same  law  of  comity  prevails  among  the  several 
sovereignties  of  this  Union.  The  public  and  well-known  and  long-continued 
usage  of  trade,  the  general  acquiescence  of  the  States,  the  particular  legisla- 
tion of  some  of  them,  as  well  as  the  legislation  of  Congress,  all  concur  in  prov- 
ing the  truth  of  this  proposition. 

But  we  have  already  said  that  this  comity  is  presumed  by  the  silent 
acquiescence  of  the  State.  Whenever  a  State  sufBciently  indicates  that  con- 
tracts which  derive  their  validity  from  its  comity  are  repugnant  to  its  policy,  or 
are  considered  injurious  to  is  interests,  the  presumption  in  favor  of  its  adoption 
can  no  longer  be  made.  Bank  of  jUigusta  v.  Earle,  13  Curtis,  283. 
^St.  Clair  v.  St.  Clair,  1  Hag.  Con.  297. 

22 


326  ECCLESIASTICAL  LAW. 


divorce  would  be  held  invalid  in  the  countries  where  the  marriage 
is  celebrated,  and  valid  where  the  divorce  is. obtained  what  rule, 
is  to  govern  in  other  countries  as  to  such  divorce  I  Is  it  to  be 
deemed  valid  or  invalid  there  ?  Will  a  new  marriage  contracted 
there  by  either  party  be  good  or  not  good?  These  and  many 
other  perplexing  questions  may  be  put.  And  it  is  difficult  at  tlie 
present  to  give  any  answer  to  them  which  would  receive  the 
unquahfied  assent  of  all  nations."  Other  perplexing  inquiries 
may  grow  out  of  the  consideration  of  the  national  character  of 
the  parties,  whether  they  are  both  citizens  or  subjects  or  both 
foreigners,  or  one  a  citizen  and  the  other  a  foreigner,  whether  the 
marriage  Avas  celebrated  at  liome  or  abroad,  whether  the  jurisdic- 
tion of  the  court  pronouncing  the  decree  of  divorce  is  to  be 
founded  upon  the  national  character  of  the  parties,  upon  the  cele- 
bration of  the  marriage  within  the  territorial  jurisdiction,  upon 
the  domicile  of  the  parties,  upon  the  temporary  residence  of  one  or 
both  at  the  time  the  process  is  instituted,  and  if  upon  any  of  these 
grounds  the  jurisdiction  is  sustained,  another  not  less  important  in- 
quiry is  whether  the  law  of  divorce  of  the  place  of  the  marriage  or 
that  of  the  place  where  the  suit  is  instituted  is  to  be  administered. 

One  of  two  conclusions  must  obtain  in  order  to  determine  this 
vexed  question.  We  must  either  apply  the  lex  loci  contfacii  or 
the  lex  domicilii.  In  those  countries  where  marriage  is  held  to 
be  indissoluble  the  former,  or  the  lex  loci  contracti,  is  contended  for. 
This  rule  obtains  in  nearly  all  Catholic  countries,  whereas  the 
latter  is  adhered  to  in  nearly  or  quite  all  Protestant  countries. 
The  Roman  Catholic  Church,  and  the  countries  subject  to  its  in- 
fluence, have  contended  that  marriage  is  a  sacrament,  and  in  its 
effects  to  be  governed  by  the  divine  laAv,  and  according  to  their 
interpretation  of  that  law  it  is  indissoluble.' 

Pothier  says  that  marriage  is  not  dissolved  but  by  the  natural 
death  of  one  of  the  parties ;  while  they  live  it  is  indissoluble. 
Story's  Conflict  of  Laws,  174.  The  Protestants,  on  the  contrary, 
have  not  always  considered  it  a  sacrament ;  but  the  most  of  them 
have  considered  it  a  civil  institution,  subject  to  legislative  author- 
ity as  a  matter  of  public  policy  and  regulation.^ 

^  See  Furguson  on  Marriage  and  Divorce,  Appendix,  note  M.  443;   Dair 
rtjmple  v.  Dalrymple,  2  Hag.  Cons.  R.  03,  G4,  67. 

■^  Our  law  con.siders  marriage  in  no  other  light  than  a  civil  contract.    The 


FOREIGN  JUDGMENTS.  327 

In  a  very  important  case  before  the  twelve  judges  in  England, 
on  a  trial  for  bigamy,  where  English  subjects  were  married  m 
England  and  afterwards  the  husband  went  to  Scotland  and  pro- 


holiness  of  the  matrimonial  state  is  left  entirely  to  the  ecclesiastical  law — the 
temporal  courts  not  having  jurisdiction  to  consider  unlawful  marriage  as  sin,  but 
merely  as  a  civil  inconvenience.  The  punishment,  therefore,  or  annulling  of 
incestuous  or  other  unscriptural  marriages,  is  the  province  of  the  spiritual  courts 
which  act  pro  salute  animce.  And  taking  it  in  this  civil  light,  the  law  treats  it 
as  all  other  civil  contracts,  allowing  it  to  be  good  and  valid  in  all  cases  where 
the  parties  at  the  time  of  making  it  were,  in  the  first  place,  willing  to  contract; 
secondly,  able  to  contact,  and,  lastly,  actually  did  contract  in  the  proper  forms 
and  solemnities  required  by  law.     1  Blackstone's  Com.  4H2. 

Any  words  of  assent  in  the  present  tense  constitute  a  valid  marriage,  unless 
there  exists  some  positive  statute:  nor  need  a  clergyman  or  magistrate  be  pres- 
ent. It  is  complete  if  there  is  full,  free,  and  mutual  consent  between  the  parties 
capable  of  contracting,  though  not  followed  by  cohabitation.  Ilantz  v.  Sealy, 
6  Binn.  405. 

The  maxim  of  the  civil  law  nuptias  non  concuhitus  sed  consensus  facit 
(Dig.  L.  50  tit.  17,  §  30),  or  one  of  the  same  import,  has  ever  been  regarded  in 
courts  of  common  law  as  a  good  definition  of  marriage.  There  is  an  expression 
in  Wood's  Institutes  of  the  Laws  of  England,  Inst.  57,  which,  if  examined  with- 
out its  context,  might  seem  to  imply  that  cohabitation  as  well  as  consent  was 
required  to  make  a  valid  marriage.  "  Marriage  or  matrimony,"  he  observes,  "  is 
an  espousal  de  prcesenii,  and  a  conjunction  of  man  and  woman  in  constant  so- 
ciety;" but  the  very  next  sentence  is  the  translation  of  a  Latin  maxim  similar  to 
the  one  quoted  from  the  civil  law,  "  Mutual  consent,"  he  says,  "  makes  the  mar- 
riage before  consummation."  The  language  of  Jacob,  in  his  Dictionary,  tit. 
Marriage,  is  less  liable  (o  misconstruction.  He  says,  "  Nothing  more  is  neces- 
sary to  complete  a  marriage  by  the  laws  of  England  than  a  full,  free,  and  mu- 
tual consent  between  parties  "  not  incapable  of  entering  into  such  a  state.  Wood, 
in  his  Institute  of  the  Civil  Law,  p.  120,  says  that  "Espousals  de  prcesenti,  or 
mai'riage,  is  contracted  by  consent  only,  without  carnal  knowledge."  Jackson  v. 
Winne^  7  Wendell,  50. 

In  regard  to  the  nia.xim,  nuptias  non  concuhitiis  sed  consensus  facit,  the 
Supreme  Court  of  the  United  States  were  equally  divided,  and  gave  no  opinion 
(See  Jetcell  v.  Jewell,  1  How.  U.  S.  R.  219);  and  in  the  case  of  The  Queen  v. 
Mills,  10  Clark  &  Finnelly,  5.34,  in  the  House  of  Lords,  the  lords  were  equally 
divided  on  the  same  question.  The  question  had  been  referred  by  the  lords  to 
the  judges,  and  Lord  C.  J.  Tindall,  in  behalf  of  the  judges,  gave  their  unanimous 
opinion  against  the  validity  of  the  marriage.  "  It  will  appear,  no  doubt,"  says 
Chief-Justice  Tindall,  "upon  referring  to  the  different  authorities,  that  at  various 
periods  of  our  history  there  have  been  discussions  as  to  the  nature  and  descrip- 
tion of  the  religious  ceremonies  necessary  for  the  completion  of  a  perfect  mar- 
riage which  can  not  be  reconciled  together;  but  there  will  be  found  no  authority 
to  contravene  the  general  position  that  at  all  times,  by  the  common  law  of  Eng- 
land it  has  been  essential  to  a  full  and  complete  marriage  that  there  must  be 


328  ECCLESIASTICAL  LAW. 


cured  a  divorce  a  vinculo  matrimonii  there  and  then  returned  to 
England  and  married  another  woman,  it  was  decided  that  the 
second  marriage  was  void,  and  that  the  husband  Avas  guilty  of 
bigamy.  It  has  been  commonly  supposed  that  this  decision  pro- 
ceeded upon  the  broad  and  general  ground  that  an  English  mar- 
riage is  incapable  of  being  dissolved  under  any  circumstances  by 
a  foreign  divorce,  and  so  it  was  understood  by  Lord  Eldon  on  a 
later  occasion ;  but  it  has  been  stated  by  a  learned  judge  in  a 
very  recent  case,  that  it  turned  upon  the  distinction  in  point  of 
jurisdiction  between  a  temporary  and  fugitive  residence  for  the 

some  religious  solemnity,  and  that  both  modes  of  obligation  should  exist  to- 
gether— the  civil  and  religious ;  that  besides  the  civil  contract,  that  is,  the  con- 
tract per  verba  de  prcesenti,  which  has  always  remained  the  same,  there  has 
also  been  a  religious  ceremony,  which  varied  from  time  to  time  according  to  the 
variation  of  the  laws  of  the  Church;  with  respect  to  which  ceremony  it  is  to  be 
observed  that  whatever  at  any  time  has  been  held  by  the  laws  of  the  Church  as 
a  sufficient  religious  ceremony  of  marriage,  the  same  has  at  all  times*  satisfied 
the  common  law  of  England.  But  it  is  not  to  be  found  in  any  period  of  our  his- 
tory, either  that  the  Church  of  England  has  held  the  religious  celebration  suffi- 
cient to  constitute  a  valid  marriage  unless  it  was  performed  in  the  presence  of 
an  ordained  minister,  or  that  the  common  law  has  held  a  marriage  complete 
without  such  celebration.  10  CI.  &  Fin.  655,  666.  See  also  Cathei'wood  v.  Col- 
son,  13  Mess.  &  W.  261,  and  the  observations  of  Dr.  Lushington  in  Catterall  v. 
Catierall,  1 1  Jur.  914,  &  Stat.  7.&  8  Vic.  c.  81  §  8:5;  5  &  6  Vic.  c.  113. 

The  following  autliorities  may  be  referred  to  as  explanatory  of  the  laws  of 
Scotland  res{)ecting  marriage /?(??■  t'crfea  c7e  prcesenti:  Dalrijmple  v.  Dalrymplc, 
2  Hag.  Cons.  R.  54;  IlamiUon  v.  Hamilton,  9  CI.  &  Fin.  327;  Seicart  v.  Men- 
zies,  8  id.;   Shelf  on  Marriage  and  Divorce,  91. 

In  the  United  Slates  it  has  been  generally  held,  that  a  merely  civil  contract, 
entered  into  per  verba  de  prcesenti,  without  any  ecclesiastical  or  legal  sanction, 
was  a  good  marriage  at  common  law;  2  Kent,  87-91 ;  Fenton  v.  Reed,  4  John. 
52  ;  Clayton  v.  Wardell,  4  Comst.  230  ;  Rose  v.  Clark,  8  Paige,  573 ;  Hants  v. 
Sealey,  6  Binney,  408;  Chambers  v.  Dickson,  2  S.  &  R.  477;  Rodebavgh  v. 
Sanks,  2  Watts,  1  ;  Toiim  of  Londonderry  v.  Town  of  Chester,  2  N.  H.  268 ; 
Deemaresly  v.  Fishley,  3  Manshall  Ky.  370;  Gnardiayis  of  the  Poor  \.  Nathans, 
5  Penn.  Law  Journal,  I ;  Forney  v.  Hallacher,  8  S.  &  R.  159;  and  especially  if 
such  a  contract  is  followed  by  cohabitation.  In  the  matter  of  Taylor,  9  Paige 
611;  Rose  v.  Clark,  8  id.  574;  cohabitation,  acknowledgment  by  the  parties, 
and  common  repute,  are  sufficient  to  rai.se  a  presumption  of  marriage  {Jenkins 
v.  Bisbee,  1  Edwards,  377);  but  as  .such  circumstances  in  themselves  constitute 
marriage,  they  may  be  rebutted  (  Clayton  v.  Wardell,  4  Comst.  230).  But  in  an 
action  for  bigamy  such  presumptive  evidence  is  inadmissible  to  establisli  the  fact 
of  marriage;  id.  See,  also.  Ford  v.  Ford,  4  Ala.  142.  See  further.  Am.  Ch. 
Dig.  by  Waterman,  tit.  Husband  k  Wife;  Dig.  N.  Y.  Rep.  by  Ilogan,  tit.  Mar- 
riage;   Taylor  v.  Robinson,  29  Maine,  323;    Tarpley  v.  Poage,  2  Texas,  139. 


FOREIGN  JUDGMENTS.  329 

purpose  of  a  divorce  and  a  bona  fide  change  of  domicile  by  the 
hnsband  and  wife  animo  manendi.  We  presume,  however,  that 
the  court,  in  making  the  decision,  was  influenced  by  both  con- 
siderations; if  by  the  latter,  the  decision  is  in  harmony  with 
most  of  the  adjudged  cases  upon  the  subject  of  jurisdiction,  for 
in  that  case  it  was  the  status  of  the  party  petitioning  for  the 
divorce,  and  that  status  was  founded  upon  a  hona  fide  residence.^ 
The  general  question  came  before  the  Supreme  Court  of  Ver- 
mont, whether  a  marriage  celebrated  in  Massachusetts  could  be 
dissolved  by  a  decree  of  divorce  of  the  proper  State  Court  of 
Vermont,  both  parties  being,  at  the  time,  hona  fide  domiciled  in 
that  State,  and  the  cause  of  divorce  being  such  as  could  not 
authorize  a  divorce  a  vinculo  matrimonii  in  Massachusetts.  The 
court  decided  in  tiie  affirmative,  upon  the  ground  that  the  actual 
domicile  must  regulate  the  right.  The  regulations  on  the  subject 
of  marriage  and  divorce  are  rather  parts  of  the  criminal  than  of 
the  civil  code,  and  apply  not  so  much  to  the  contract  between  the 
individuals  as  to  the  personal  relations  resulting  from  it,  and  to 
the  relative  duties  of  the  parties  ;  of  their  standing  and  conduct 
in  the  society  of  which  they  are  members  ;  and  that  these  are 
regulated  with  a  principal  view  to  public  order  and  economy,  the 
promotion  of  good  morals,  and  the  happiness  of  the  community.^ 

^2  Kent's  Com.  110-117. 

^  The  laws  of  Vermont  which  authorize  the  Supreme  Court  of  that  State  to 
proceed  in  suits  for  divorce  instituted  in  favor  of  persons  resident  for  a  time,  but 
having  no  settled  domicile  within  the  State  against  persons  resident  and  domi- 
ciled in  other  States  who  are  not  and  never  have  been  amenable  to  the  sover- 
eignty of  the  State  of  Vermont,  upon  allegations  of  offenses  not  pretended  to 
have  been  committed  within  the  territory  of  the  State,  or  contrary  to  the  peaoe, 
morals,  or  economy  of  the  society  there,  or  in  violation  of  any  contract  subsist- 
ing or  which  has  ever  been  recognized  there — in  short,  where  no  jurisdiction  of 
the  parties  or  of  the  subject  matter  can  be  suggested  or  supposed—  are  not  to  be 
justi6ed  by  any  principles  of  comiiy  which  have  been  known  to  prevail  in  the 
intercourse  of  civilized  States.  I  must  be  permitted  to  say,  the  operation  of  thi*; 
assumed  and  extraordinary  jurisdiction  is  an  annoyance  to  the  neighboring 
States,  injurious  to  the  morals  and  happiness  of  their  people;  and  the  exercise 
of  it  is,  for  these  reasons,  to  be  reprobated  in  the  strongest  terms,  and  to  be 
counteracted  by  legislative  provisions  in  the  oifended  States.  But  the  proceed- 
ings in  the  suit,  and  the  decree  of  divorce  offered  in  evidence  in  the  case  at  bar, 
are  not  within  the  reach  of  this  censure,  or  liable  to  be  impeached  on  either  of 
the  objections  which  liave  been  considered  by  this  Court.  We  receive  the  evi- 
dence, therefore,  as  conclusive,  and   as   proving   undeniably  the  material  fact 


830  ECCLESIASTICAL  LAW. 

Most  of  the  Western  States  have  acquiesced  in  this  latter 
view,  treating  the  bona  fide  residence  of  tlie  parties  or  party  pe- 
titioning, without  reference  to  the  law  under  which  the  marriage 
was  solemnized,  or  of  the  place  where  the  offense  was  committed, 
as  constituting  a  sufficient  reason  for  invoking  the  aid  of  the  court. 

A  question  has  been  frequently  before  our  courts  as  to  the 
effect  of  ex  parte  decrees  Avhere  the  defendant  is  brought  into 
court  by  consti'uctive  notice  and  is  not  personally  amenable  to 
the  jurisdiction.  The  ground  upon  which  the  validity  of  these 
decrees  is  maintained  is,  that  marriage,  being  a  relation  involving 
the  social  status  of  the  party  to  it,  the  State  of  which  the  com- 
plainant is  a  bona  fide  resident  has  the  right  to  determine  his 
matrimonial  status ;  and  in  consequence  of  the  new  relation  that 

in  issue  between  the  parties,  namely,  that  the  marriage  whicli  had  been  between 
Matthew  Barber  and  the  demandant  was  dissolved  in  due  course  of  law,  and 
with  the  sanction  of  a  competent  tribunal.     Barbar  v.  Root^  10  Mass.  265. 

The  rule  has  since  been  recognized  in  the  case  of  Toney  v.  Lindsay,  1  Daw's 
Rep.  117,  in  the  English  House  of  Lords.  In  that  case,  the  marriage  was  con- 
tracted at  Gibralter,  within  the  pale  of  the  English  law ;  the  parties  were  after- 
wards domiciled  in  England,  and  then  went  to  Scotland,  and  were  there  divorced, 
a  vinculo.  Though  the  House  of  Lords  remitted  the  cause  for  review  on  the 
whole  matter,  yet  they  evidently  admit  the  principle  that  an  English  marriage 
could  not  anywhere  be  dissolved  except  by  an  act  of  Parliament;  and  Lord 
Eldon  observed  that  it  had  been  so  decided  lately  by  the  unanimous  opinion  of 
the  twelve  judges  of  England,  though  the  parties  therefore  may  have  been,  at  the 
time  of  the  divorce,  in  Scotland,  and  domiciled  there  bona  Jide,  yet  such  a  di- 
vorce would  not  dissolve  a  marriage  contract  made  in  England. 

See,  also,  Harg.  Co.  Litt.  79,  b.  n.  44  ;  Hub.  de  conflictu  legum  ;  Opinion 
of  Eyre,  Ch.  J.  2  H.  Bl.  410;  .S  Mass.  Rep.  158. 

We  are  not  called  upon,  in  the  present  case,  to  pass  upon  the  legal  effect  of 
a  divorce  granted  by  the  Supreme  Court  of  Vermont.  Here  is  a  clear  attempt 
of  one  of  our  citizens  to  evade  the  force  of  our  laws.  The  plaintiff,  to  obtain  a 
divorce  which  our  laws  do  not  allow,  instituted  her  proceedings  in  Vermont  while 
she  was  an  inhabitant  and  actual  resident  of  this  State,  and  while  her  domicile 
continued  in  this  State  ;  for  she  was  incapable,  during  her  coverture,  of  acquiring 
a  domicile  distinct  from  that  of  her  hu.sband.  The  plaintiff  having  acted  with  a 
view  of  evading  our  laws,  it  would  be  attended  with  ])ernicions  consequences  to 
aid  this  attempt  to  elude  them. 

It  may  be  laid  down  as  a  general  principle,  that  whenever  an  act  is  done  in 
fraudem  legis,  it  can  not  be  the  basis  of  a  suit  in  the  courts  of  the  country  whoso 
laws  are  attempted  to  be  infringed.  The  cases  of  Briggs  and  Lawrence,  and 
Clugas  and  Penaluna,  support  this  opinion  without  going  beyond  the  point  now 
submitted.  The  Court  are,  therefore,  of  the  opinion  that  judgment  must  be 
given  for  the  defendant.     Jackson  v.  Jackson,  1  John.  432. 


FOREIGN  JUDGMENTS.  331 

may  be  formed  in  consequence  of  the  dissolution  of  the  marriage 
in  the  State  where  the  decree  is  pronounced,  that  public  policy 
requires  the  recognition  of  the  validity  of  such  decrees  in 
other  States.^ 

We  have  previously  referred  incidentally  to  the  provisions  of 
the  Constitution  and  statutes  of  the  United  States  in  regard  to  the 
admissibility  and  effect  of  judgments  of  one  State  when  sought 
to  be  read  in  the  tribunals  of  another.  Such  judgments,  when 
authenticated  by  the  attestation  of  the  clerk,  and  the  seal  of  the 
court  annexed,  if  there  be  a  seal,  together  with  the  certificate  of 
the  judge,  chief-justice,  or  presiding  magistrate,  as  the  case  may 
be,  that  the  attestation  of  the  clerk  is  in  due  form,  are  made  ad- 
missible evidence  in  every  State  in  the  Union  by  a  statute  which 
provides  that  the  records  and  judicial  proceedings  properly 
authenticated  (in  the  manner  as  we  have  before  described),  shall 
have  such  faith  and  credit  given  to  them  in  every  court  within 
the  United  States  as  they  have  by  law  or  usage  in  the  courts  of 
the  State  from  whence  such  records  are  or  shall  be  taken.  This 
mode  of  authentication  is  not  exclusive  of  any  other  which  either 
of  the  States  may  see  proper  to  adopt ;  neither  is  the  effect  of  it 
to  be  extended  to  the  giving  of  full  faith  and  credit  to  judgments 
and  proceedings  in  criminal  cases  ;  neither  Is  the  conviction  of 
an  infamous  crime  in  a  foreign  country  or  in  any  of  the  United 
States  to  be  held  to  render  the  person  convicted  an  incompetent 
witness  out  of  the  State  where  convicted.  The  judicial  proceed- 
ings referred  to  in  the  acts  of  Congress  are  also  construed  to  ap- 
ply to  proceedings  of  courts  of  general  jurisdiction ;  for  it  requires 
the  certificate  of  the  clerk,  the  judge,  chief-justice,  or  presiding 
magistrate  ;  and  in  order  to  have  this  character  of  authentica- 
tion, the  court  must  be  so  constituted  as  to  admit  of  such  officers. 
The  records  of  magistrates  who  may  be  vested  with  limited  judi- 
cial authority  varying  in  its  objects  and  extent  in  the  different 
States  are  to  be  governed  by  the  law  of  the  State  into  which  they 
may  be  introduced  for  the  purpose  of  being  carried  into  effect.  " 

1  Coxv.  Cox,  19  OhioS.  502. 

2  The  Act  of  Congress  passed  in  1790*  prescribes  the  mode  of  authentication, 
but  we  should  say,  except  for  the  decision  of  the  Supreme  Court  of  the  United 

*lCong.  2d.  Sess.  c.  11. 


33 !2  ECCLESIASTICAL  LAW. 

The  judgments  and  records  of  justices  of  the  peace  have, 
therefore,  been  held  not  to  be  within  the  meaning  of  these  Con- 
stitutional and  statutory  provisions,^  but  any  court  of  record, 
having  a  judge,  a  clerk,  and  a  seal,  Avhether  it  be  a  court  of 
Chancery,  of  common  law,  or  of  probate,  may  be  approved  in  the 
manner  directed  by  the  statute.  Where  the  record  offered  in 
evidence  is  not  authenticated,  in  accordance  with  the  provisions 
of  the  Act  of  Congress,  it  may  still  be  used  in  evidence  if  it  is 
authenticated  in  accordance  with  the  statute  of  the  State  where 
such  record  is  offered  in  evidence.  The  authentication  in  such 
case  does  not  depend  upon  the  law  of  the  State  under  which  such 
record  was  made,  but  rather  upon  the  law  of  such  State  wherein 
such  record  is  sought  to  be  used.  In  addition  to  these  modes  of 
authentication  of  records  so  as  to  entitle  them  to  be  read  in  evi- 
dence, there  is  a  common  law  mode  of  proof,  by  which  a  witness 
who  has  compared  the  copy  with  the  original  may  establish  the 


States,  has  not  determined  the  effect,  for  it  only  provides,  in  the  words  of  the 
Constitution,  for  the  "faith  and  credit"  to  be  given  to  acts,  etc.,  so  authenticated, 
leaving  the  effect  uncertain  as  it  was  by  the  Constitution.  But  without  calling 
in  question  these  decisions  let  us  see  to  what  records  they  apply.  Certainly  we 
think  the  judicial  proceedings  referred  to  in  the  Constitution  were  supposed  by 
the  Congress,  which  passed  the  act  providing  the  manner  of  authenticating  rec- 
ords, to  have  related  to  the  proceedings  of  courts  of  general  jurisdiction,  and 
not  to  those  which  are  of  merely  municipal  authority,  for  it  is  required  that  the 
copy  of  the  record  shall  be  certified  by  the  clerk  of  the  court,  and  that  there 
shall  also  be  a  certificate  of  the  judge,  chief-justice,  or  presiding  magistrate,  that 
the  attestation  of  the  clerk  is  in  due  form.  This  is  founded  upon  the  supposi- 
tion that  the  court  whose  proceedings  are  to  be  thus  authenticated  is  so  consti- 
tuted as  to  admit  of  such  ofScers,  and  the  act  has  wisely  left  the  records  of  mag- 
istrates, who  may  be  vested  with  limited  judicial  authority,  varying  in  its  objects 
and  extent  in  every  State,  to  be  governed  by  the  laws  of  the  State  into  which 
they  may  be  introduced  for  the  purpose  of  being  carried  into  effect.  Being  left 
unprovided  for  by  the  Constitution  or  laws  of  the  United  States,  they  stand  upon 
no  better  footing  than  foreign  judgments,  being  not  more  than  prima  facie  evi- 
dence of  debt,  and  liable  to  be  defeated  in  their  operation,  under  the  plea  of  nil 
debet,  as  other  foreign  judgments  are.      Warren  v.  Flagg,  2  Pick.  449. 

^  By  the  Court,  Sutherland,  J.  This  being  an  action  of  debt  upon  a  justice's 
judgment  rendered  in  the  State  of  Pennsylvania,  it  was  incumbent  upon  the 
jilaintiff  to  show  that  the  magistrate  had  jurisdiction  of  the  subject  matter  of  the 
suit  as  well  as  of  the  person  of  the  defendant.  Courts  of  justices  of  the  peace 
are  not  courts  of  record.  They  do  not  proceed  according  to  the  courts  of  the 
common  law.  1  John.  Cas.  20  H.  John.  H.  42i).  Tlicy  are  confined  strictly  to 
the  authority  given  them  by  statute,  and  can  take  nothing  by  implication,  but 


FOREIGN  JUDGINIENTS.  333 

contents  of  the  record.  In  such  case  it  is  not  necessary  for  the 
person  examining  to  exchange  papers  and  read  them  alternately  ; 
but  it  should  appear,  before  the  copy  is  admissible  in  evidence, 
authenticated  with  this  ancillary  proof,  that  the  record  from  which 
the  copy  was  taken  was  in  the  hands  of  the  proper  custodian, 
whose  duty  it  was  to  keep  it.  And  this  fact  can  not  be  shown  by 
any  inference  drawn  from  the  record  itself;  nothing  can  be  bor- 
rowed until  it  has  been  proven  that  the  original  come  from  the 
proper  court.  When  the  record  is  lost  or  destroyed,  or  is  very 
ancient,  its  existence  and  contents  may  sometimes  be  presumed; 

must  show  their  authority  in  every  instance,  and  must  comply  with  the  forms 
prescribed  by  the  law  creating  them.  1  John.  Cas.  228  ;  1  Gaines's  R.  191,  594, 
n.  a.  3  Gaines's  R.  152.  A  court  of  general  jurisdiction  is  presumed  to  have 
acted  in  each  particular  case  by  competent  authority,  and  its  records  are  evi 
deuce  not  only  of  its  acts  but  of  its  jurisdiction.  Wheeler  v.  Raymond,  8 
Cowen,  311.  But  the  rule  is  different  with  reference  to  inferior  courts,  their  juris- 
diction must  always  be  shown.  Mills  v.  Martin,  19  John.  R.  33,  and  cases  there 
cited;  Borden  v.  Fitch,  15  id.  140,  13  id.  39;  Andreivs  v.  Montgomery,  19  id- 
162.  It  appears  affirmatively  in  this  case  that  justices'  courts  in  the  State  of 
Pennsylvania  were  created  and  organized  by  statute.  The  superior  courts  of 
that  State  would  take  judicial  notice  of  the  authority  and  jurisdiction  conferred 
by  statute  upon  these  courts;  but  the  courts  of  another  State  have  no  judicial 
knowledge  of  the  statute  laws  of  Pennsylvania.  It  was  essential,  therefore,  in 
order  to  show  what  faith  and  credit  would  be  given  to  the  judgment  of  these 
courts  in  Pennsylvania,  to  produce  and  prove  the  authority  under  which  they 
were  organized  and  proceeded;  this  could  only  be  done  by  producing  and  prov- 
ing the  Statute  by  which  they  were  created.  If  that  showed  that  the  subject 
matter  was  within  the  jurisdiction  of  the  justice's  court,  and  the  proceedings  ap- 
peared from  the  record  to  have  been  in  conformity  with  the  directions  of  the 
statute  then  it  would  be  entitled  here  to  full  faith  and  credit.  Mills  v.  Duryee, 
7  Granch,  481;  Shuniivay  v.  Stillman,  4  Gowen,  292;  Thomas  v.  Rohinson,  3 
Wendell,  2C.8. 

In  Sollers  v.  Lawrence,  Wills,  416,  the  language  of  the  Court  in  speaking  of 
courts  of  limited  jurisdiction,  is  this:  "  The  rule  is  that  nothing  must  be  intended 
in  favor  of  their  jurisdiction,  but  that  it  must  appear  by  what  is  set  forth  on  the 
record,  that  they  had  such  jurisdiction.  A  justice  of  the  peace  at  common  law 
has  no  jurisdiction  in  civil  matters;  he  is  a  mere  conservator  of  the  peace.  It 
is  only  by  virtue  of  the  Fifty-dollar  Act  that  he  has  jurisdiction  in  an  action  of 
debt,  or  any  other  civil  action  between  individuals;  but  it  is  not  stated  that  the 
justice,  by  virtue  of  that  statute,  issued  any  process,  or  held  a  court,  or  that 
the  plaintiffs  levied  any  plaint  before  him  in  relation  to  any  matter  within 
his  jurisdiction.  According  to  all  the  decisions,  the  facts  should  have  been 
stated  and  the  statute  under  which  the  justice  acted.  Cieveland  v.  Rogers,  6 
Wendell,  442. 


334  ECCLESIASTICAL  LAW. 

or  secondary  evidence  is  admissible  under  such  circumstances  to 
prove  its  contents,  especially  when  the  case  does  not  disclose  the 
existence  of  other  and  better  evidence.^ 


CHAPTER  V. 

PUBLICDOCUMENTS. 

When  papers  are  officially  in  the  custody  of  a  person  he  may 
be  compelled,  by  a  rule  of  court,  to  allow  an  inspection  of  tliem, 
even  if  it  furnish  evidence  in  a  civil  action  against  the  person 
himself.  But  an  ecclesiastical  tribunal  has  no  such  authority. 
Such  tribunal  can  neither  compel  the  person  in  whose  custody 
the  papei's  are  intrusted  to  allow  an  inspection  of  them,  nor  can 
he  be  compelled  to  furnish  copies  witliout  the  aid  of  a  court  of 
equity,  which  might,  under  certain  circumstances,  be  invoked,  as 
Courts  of  Chancery,  on  a  proper  case  made  by  bill,  will  compel 

^  Records  generally  are  to  be  proved  by  inspection  or  by  copies  properly  au- 
thenticated; but,  if  there  be  sufiicient  proof  of  their  loss  or  destruction,  much 
inferior  evidence  of  their  contents  may  be  admitted.  In  the  case  before  us  it  is 
agreed  that  for  more  than  thirty  years  past  the  inhabitants  of  West  Stockbridge 
have  exercised  and  enjoyed  all  the  powers,  privileges,  and  immunities  of  a  town. 
They  have  been  admitted  to  the  right  of  representation  to  the  general  court, 
have  been  assessed  in  their  proportion  of  all  State  and  county  taxes;  and,  by 
many  other  acts  and  proceedings,  their  existence  as  a  corporation  has  been 
recognized  by  the  legislature. 

But  the  act  of  incorporation  is  not  to  be  found,  nor  can  any  record  relating 
to  it  be  discovered  in  the  secretary's  office.  From  the  facts,  however,  the  pre- 
sumption is  violent,  that  the  town  has  been  regularly  incorporated,  and  that  the 
record  has  in  some  way  been  lost  or  destroyed.  The  existence  of  the  record  is 
also  proven  by  the  deposition  in  question,  and  it  can  not  be  doubted  that  parol 
evidence  is  competent  to  prove  the  existence  and  loss  of  a  record.  This,  then, 
being  satisfactorily  proved,  secondary  evidence  of  the  incorporation  of  the  town 
is  clearly  admissible  by  the  rules  of  evidence.  Iiihahitants  of  Stockbridge  v. 
Inhabitants  of  West  Stockbridge^  12  Mass.  401. 

See,  also,  Dillingham  v.  Snoiv  et  al.  .5  Mass.  R.  517 ;  3  Mass.  R.  27(i ; 
Klock  v.  Eichtmeijer,  13  John.  367;  Schauber  v.  Jackson,  2  Wend.  60;  3fai- 
thews  v.  Trinity  Church,  3  Serg.  &  Rawle,  509 ;  Hathaway  v.  Clark,  5  Pick. 
490;  Farrar's  Case,  Skin.  78;  1  Eden,  209;  Cawp.  215;  6  East,  215;  2  Ves.  Jr. 
583;  1  Jac.  &  Walk.  63;  Rex  v.  Moniagve,  4  B.  &  C.  538;  Mayor  of  Hull  v. 
Homer,  Cawp.  102:  3  D.  &  E.  158;  Matthews,  199-195;  Greenleaf  on  Evi- 
dence, 553. 


PUBLIC  DOCUMENTS.  335 


a  discovery  in  aid  of  proceedings  in  other  tribunals  when  neces- 
sary to  the  furtherance  of  justice.  But  when  books  and  papers 
are  in  the  hands  of  a  person  not  a  party  to  the  suit,  and  are 
wanted  as  evidence,  resort  must  be  had  to  a  subpoena  duces 
tecum,  and  when  the  complainant  wishes  to  obtain  their  custody, 
such  person  must  be  made  a  party  defendant.^      But  an  excep- 

^  The  Chancellor  said:  "  The  Court  had  no  jurisdiction  over  the  appellant,  he 
not  being  a  party  to  the  suit,  to  compel  him  to  deliver  over  the  books  and  papers 
in  his  possession  to  the  Master  with  a  view  to  their  delivery  to  the  receiver.  lie 
was  a  mere  witness  before  the  Master,  and  if  these  books  were  wanted  as  evi- 
dence in  relation  to  any  matter  of  inquiry  upon  the  reference,  the  proper  course 
to  obtain  the  books  for  that  purpose  was  to  serve  the  witness  with  a  subpoena 
duces  tecum  to  attend  with  the  books  and  to  give  evidence  in  relation  to  the 
same.  But  neither  the  Master  nor  the  Court,  even  in  that  case,  would  have  the 
right  to  take  the  books  out  of  the  possession  of  the  witness  and  deliver  them  over 
to  the  receiver  without  the  consent  of  such  witness,  or  to  allow  them  to  be  used 
for  any  other  purpose  than  as  mere  evidence  upon  the  subject'  of  the  inquiry 
which  was  properly  before  the  Master  upon  the  reference.  A  case  very  similar 
to  the  one  now  under  consideration  came  before  the  Court  of  Review  in  England 
in  August  last.  There,  the  attorney  of  the  bankrupts  had  in  his  possession  a  deed 
belonging  to  them  which  he  refused  to  deliver  to  the  solicitor  of  the  assignee, 
claiming  a  lien  on  such  deed  for  professional  services.  He  was  thereupon  sum- 
moned as  a  witness  before  the  Commissioner  in  Bankruptcy  to  be  examined 
touching  the  estate  of  the  bankrupts  and  to  produce  the  deed  upon  his  examina- 
tion. He  attended  accordingly  and  produced  the  deed;  and  the  Commissioner 
having  decided  that  the  witness  had  no  lien  upon  the  deed,  ordered  him  to  deliver 
it  up,  which  he  declined  to  do  until  his  lien  was  paid.  The  Commissioner  th-en 
ordered  the  officer  of  the  Court  to  take  the  deed  from  him,  which  was  accord- 
ingly done.  But  upon  appeal  to  the  Court  of  Review,  the  chief  judge.  Sir  James 
Lewis  Knight  Bruce,  said  the  Court  could  not,  in  this  way,  decide  as  to  the 
validity  of  the  alleged  lien,  and  that  the  Commissioner  might  as  well  have  taken 
from  the  witness  tlie  suit  of  clothes  in  which  he  came  to  Court  as  to  take  the 
deed  upon  which  he  claimed  to  have  a  lien.*  So  in  the  case  under  considera- 
tion, the  appellant  was  a  mere  witness  before  the  Master  upon  the  reference,  and 
the  Court  had  no  jurisdiction  over  him  except  in  that  character.  It  had  no  right, 
therefore,  to  order  him  to  deliver  up  the  books  in  his  possession  whether  his  claim 
to  such  possession  was  or  was  not  well  founded.  The  agency  of  the  appellant, 
as  he  testified,  had  ceased  before  the  commencement  of  this  suit;  and  if  the 
complainants  wished  to  obtain  possession  of  these  books  on  the  ground  that  he 
improperly  withheld  them,  they  should  have  made  him  a  party  to  their  suit  either 
by  an  amendment  to  their  bill  or  otherwise,  so  as  to  enable  the  Court  to  extend 
the  receivership  to  him  so  far  as  related  to  the  books  in  his  possession.  Or  if 
they  merely  wanted  the  books  as  eyidence  before  the  Master  upon  the 
reference,  they  should  have  called  upon  him    to   produce   them   as  evidence 

*See  ex  parte  Llewellyn,  8  Lond.  Jur.  Rep.  816. 


336 


ECCLESIASTICAL  LAW. 


tion  to  this  rule  is  allowed  when  the  discovery  is  sought  against 
an  officer  of  a  corporation  for  the  purpose  of  discovering  entries 
and  orders  made  in  the  books  of  the  corporation.' 

All  persons  have  not  an  interest  in  public  documents  to  the 
extent  that  would  entitle  them  to  an  inspection,  and  where  an  in- 
spection has  been  refused,  upon  application  to  the  court  by  a 
party  claiming  the  right,  he  should  show  some  interest  in  the 
document,  and  that  he  requires  it  for  a  proper  purpose  ;  and  upon 
such  showing  a  court  of  law  might  award  a  writ  of  mandamus  ; 
and  this  may  be  done  whether  an  action  is  pending  or  not.  Thus, 
where  a  board  of  directors  of  a  bank  by  resolution  excluded  one 
of  its  members  from  an  inspection  of  its  books,  alleging  in  such 
resolution  that  they  believe  him  to  be  hostile  to  the  interests  of 
the  institution,  a  peremptory  writ  of  mandamus  was  awarded 
against  the  other  directors  and  cashier  of  the  bank,  com- 
manding the  cashier  to  submit  the  books  to  the  inspection  of 
the  relator.^ 

Records  and  documents  sometimes  partake  both  of  a  public 
and  private  character,  and  are  regarded  as  one  or  the  other  ac- 


by  a  subpcena   duces  tecum  in  the  usual  way.     Murley  et  al.  v.    Green  et  al. 
11  Paige,  241,  242. 

^  It  is  the  settled  law  in  this  country  and  in  England,  that  in  a  bill  against  a 
corporation  for  relief,  its  officers  and  agents  who  are  cognizant  of  the  facts  to 
which  it  relates,  may  be  made  defendants  for  the  purpose  of  obtaining  an  answer 
on  oath  which  can  not  be  obtained  in  any  other  way.  Story's  Equity  PI.  201, 
§235;  1  Paige,  37-219;  5  Price  R.  491.  The  decision  of  Sir  John  Leach  in 
the  case  of  Hoxo  v.  Bist  &  Hase  (5  Mad.  Rep.  19),  is  perfectly  reconcilable  with 
the  uniform  current  of  decisions  on  this  subject.  Many  v.  Beelanan  Iron  Co. 
et  al.  9  Paige,  1 93. 

See,  also,  St.  Eq.  PI.  §  235;  St.  Eq.  Jurisp.  §  1501  :  Dan.  PI.  and  Pr.  178 
et  seq.;  Cooper's  Eq.  PI.  41,  42  ;  Mitf.  PI.  188,  189;  Glascoit  v.  Copper  Miners' 
Co.  11  Sim.  305,  per  Sir  L.  Shadwell,  V.  C;  Bramley  v.  Westchester  Co.  Mf. 
Go.  1  J.  C.  R.  3()6;  Lmvyer  v.  Cipperly,  7  Paigo,  281 ;  Fulton  Bank  v.  Sharon 
Canal  Co.  1  Paige,  219;  Wright  v.  Daure,  1  Mote.  237;  Walker  v.  Halletf, 
1  Ala.  Rep.  (N.  S.)  379. 

^  If  there  is  a  right  on  the  part  of  the  relator  to  examine  the  books,  either 
with  reference  to  his  own  safety  or  with  a  view  to  a  proper  execution  of  the  trust 
reposed  in  him  by  the  stockholders,  then  this  is  the  remedy,  and  the  only  remedy, 
in  a  court  of  law.  The  question,  then,  seems  to  be  this  :  lias  every  director  of 
a  bank  a  right  to  know  the  tran.sactions  of  his  co-directors  in  relation  to  the  man- 
agement of  the  institution  ?  The  stating  the  question  furnishes  the  answer. 
The  People  v.  Throop,  12  Wendell,  185. 


PUBLIC  DOCUMENTS.  337 


cording  to  the  relation  in  wliicli  the  applicant  stands  to  them. 
Books  and  records  of  a  corporation  are  private  with  respect  to 
strangers,  and  public  as  respects  its  members  or  stockholders. 
The  former  have  no  more  right  to  examine  them  than  they  Avould 
to  examine  the  books  of  a  private  individual.  Such  books,  as  to 
mere  strangers,  are,  in  the  strictest  sense  of  the  term,  private ; 
but  a  different  rule  obtains  in  favor  of  the  stockholders  and  offi- 
cers. And  a  rule  for  an  inspection  of  the  writings  of  the  corpo- 
ration will  be  granted  in  fnvov  of  its  members  as  a  matter  of 
course,  where  such  inspection  is  shown  by  the  applicant  to  be 
necessary  in  regard  to  some  particular  matter  in  dispute,  or  where 
the  granting  of  such  rule  is  necessary  to  enable  the  applicant  to 
perform  his  duty  or  to  prevent  him  from  suffering  an  injury  ; 
under  such  circumstances,  however,  the  inspection  will  be  allowed 
only  so  far  as  it  Avas  shown  to  be  essential.^  An  inspection,  how- 
ever, is  only  granted  in  furtherance  of  civil  rights ;  for  it  is  a 
constant  and  invariable  rule,  that  in  criminal  cases  the  party  shall 
never  be  obliged  to  furnish  evidence  against  himself.  Thus,  an 
inspection  of  the  books  of  the  Post-office  has  been  refused  upon 
the  application  of  a  complainant  in  a  qui  tain  action  against  a  clerk 
in  the  Post-office  for  interfering  in  the  election  of  a  member  of 
Parliament  because  the  action  did  not  relate  to  any  transaction  in 
the  Post-office,  for  which  alone  the  books  are  kept.^  So,  also, 
inspections  of  books  and  documents  may  be  refused  on  grounds 
of  public  policy,  Avhere  the  disclosure  sought  is  considered  detri- 
mental to  the  public  interest. 

The  authentication  of  public  documents  which  are  not  judicial 
may  be  proved  by  the  great  seal  of  the  State,  by  the  production 
of  the  original  printed  document  from  a  press  authorized  by  the 
government,  by  printed  copies  of  public  documents  transmitted 
to  Congress  by  the  President  of  the  United  States  and  printed  by 
the  printer  to  Congress,  by  the  certificate  of  a  foreign  governor 
properly  authenticated,  by  a  copy  proved  on  oath  to  have  been 
examined  by  the  roll  itself  or  by  an  exemplification  under  the 
great  seal,  or  in  most,  if  not  all,  of  the  United  States  legislative 
acts,  may  be  proved  by  printed  copies  of  the  laws  and  resolves 


'  Bex  V.  Merchant  Tailors'  Co.  2  B.  &  Ad.  115. 
=»  Ci-eio  V.  BlacJcbiirn,  1  Wils.  240. 


338  FXCI.ESIASTICAI.   LAW 


of  such  legislature  published  bv  its  authority,  which  is  sufficient 
prima  facie,  for  the  book  offered  in  evidence  purports  upon  its 
face  to  have  been  so  printed^ 

There  are,  however,  as  we  have  already  seen,  certain  mat- 
ters that  courts  will  judicially  take  notice  of.  Thus,  they  will 
take  notice  of  the  Constitution  and  political  frame  of  the  general 
government,  and  of  the  States  under  which  they  are  organized, 
and  of  the  political  agents  and  officers  of  the  government,  the 
great  seal  of  the  State,  and  of  its  judicial  tribunals,  the  seal  of 
state  of  other  nations  which  have  been  recognized  by  our  gov- 


^  The  language  of  Chief-Justice  Marshall,  in  Ohiirch  v.  Hubbard,  2  Cranch, 
23G,  has  been  cited  in  this  Court  by  Mr.  Justice  Sutherland  ((>  Cowen,  429). 
Foreign  laws  are  well  understood  to  be  facts  which  must,  like  other  facts,  be  proved 
to  exist  before  they  can  be  received  in  a  court  of  justice.  The  rule,  he  says,  is 
apphcable  to  them,  that  the  best  testimony  shall  be  produced ;  and  that  such  tes- 
timony as  presupposes  better  testimony  attainable  by  the  party,  shall  not  be  re- 
ceived;  but  no  testimony  shall  be  required  that  is  shown  to  be  unattainable. 
They  should  be  authenticated  by  the  authority  of  the  foreign  State  under  its  seal ; 
or  it  should  be  shown  that  such  evidence  could  not  be  procured.  A  sworn  copy 
also  appears  to  be  competent  testimony  ;  but  a  copy  certified  by  a  consul  has  been 
held  to  be  insufficient.     Lincoln  v.  BntieUe,  fi  Wendell,  '182. 

Congress,  under  the  power  given  to  it  by  tlie  Constitution,  has  provided 
"that  the  acts  of  the  Legislatures  of  the  several  States  .shall  be  authenticated  by 
having  the  seal  of  their  respective  States  affi.xed  thereto."  Act  of  May  26,  1790, 
1  Story's  Laws,  93.  The  plaintiffs  have  given  themselves  needless  trouble.  It 
was  not  necessary  to  verify  the  seal  either  by  the  certificate  of  the  governor  or 
the  oath  of  a  witness.  The  seal  proves  itself,  and  imports  absolute  verity,  and 
until  the  contrary  appears,  the  presumption  is  that  it  was  affixed  by  the  proper 
ofBcer.  The  U.  S.  v.  Johns,  4  Dall.  412;  1  Washington  C.  C.  363,  S.  C. ;  The 
U.  S.  v.  Amedij,  11  Wheaton,  392;  The  State  v.  Carr,  5  N.  H.  R.  367;  Coit  et 
al.  V.  Millikin  et  al.  1  Denio,  376. 

Tiie  Amended  Code  (Sec.  426)  declares  that  the  printed  statutes  of  another 
State  "shall  be  admitted  by  the  courts  and  officers  of  this  State  on  all  occasions 
as  presumptive  evidence  of  such  laws,  and  that  the  unwritten  or  common  law  of 
every  other  State  may  be  proved  as  facts  by  parol  evidence,  and  the  books  of  re- 
ports of  cases  adjudged  in  their  courts  may  be  admitted  as  presum]itive  evidence 
of  the  law.  The  statutes  of  other  States,  it  has  always  been  held,  are  to  be 
proved  as  matters  of  fact.  The  code  simplifies  the  mode  of  i)roof  by  enacting 
that  it  may  be  made  by  producing  a  printed  volume  purporting  to  be  by  the 
authority  of  the  State  Government  in  which  the  statutes  are  contained.  This  is 
made  presumptive  evidence  of  its  existence.     Hunt  v.  Johnson,  4  4  N.  Y.  32. 

See,  also,  Farmers'  and  Mechanics'  Bank  v.  Ward,  4  Law  Report,  37 ; 
Packard  v.  Hill,  2  Wendell,  411,  S.  C;  5  ibid.  375;  Chanoine  v.  Fowler, 
3  ibid.  173;  Munroe  v.  Guilleaume,  3  Keyes,  30,  S.  C.  3  Abb.  Dec.  334. 


PUBLIC  DOCUMENTS.  339 


ernraent,  the  seals  of  foreign  courts  of  admiralty,  the  seals  of 
notaries  public,  and  also  public  statutes.^  Courts  will  also  take 
notice  without  proof  of  a  private  statute  where  a  clause  is  inserted 
in  it  that  it  should  be  taken  notice  of  as  though  it  were  a  public 
act,  or  that  it  shall  be  taken  and  construed  as  a  public  act.  But 
in  regard  to  journals  of  either  branch  of  the  legislature  they  may 
be  proved  by  examined  copies,  or  they  may  be  proved  by  copies 
printed  by  the  government  printer  by  authority  of  the  House ; 
upon  the  same  principle  the  journals  of  a  general  or  of  an  annual 
conference  may  be  proved  by  examined  copies  printed  by  the 
authority  of  the  conference.  And  if  they  were  offered  in  evi- 
dence before  an  ecclesiastical  tribunal,  and  examined  as  a  certi- 
fied copy  duly  authenticated  by  the  custodian  of  the  original 
journal  of  the  Church,  they  would  be  received  in  evidence  by 
our  civil  courts. 

In  many  of  the  States,  certified  copies  from  the  books  and 
records  of  private  corporations  are  made  evidence  by  statute  ;  and 
in  those  States,  the  records  and  documents  pertaining  to  the  aff'airs 
of  the  Church  would  be  so  far  regarded  as  public  records  and 
documents  as  to  constitute  an  exception  to  the  general  rule  which 
requires  the  production  of  the  best  evidence.  From  the  fact 
that  it  would  always  be  difficult  and  often  impossible  to  prove 
facts  of  a  public  nature  by  means  of  actual  witnesses  upon  oath, 
books  kept  by  persons  in  a  public  office,  and  official  registers, 
whether  authorized  by  statute  or  by  the  nature  of  the  office,  are 
admissible  in  evidence,  notwithstanding  their  authenticity  is  not 
confirmed  by  the  ordinary  tests  of  truth  ;  that  is,  the  obligation 
of  the  oath  and  the  power  of  cross-examination.  This  examina- 
tion is  founded  on  the  circumstance  that  such  books  and  official 
registers  have  been  made  by  the  authorized  agents  of  the  gov- 
ernment appointed  for  that  purpose,  and  in  addition  thereto,  that 
the  matters  recorded  therein  are  of  public  notoriety,  and  it  may 
be,  for  the  further  theoretical  reason  growing  out  of  the  doctrine 
of  principal  and  agent,  that  the  people  of  the  State  may  be  sup- 
posed to  be  privy  to  the  investigation ;  and,  therefore,  that  it  is 
not  necessary  that  they  should  be  confirmed  and  sanctioned  by 
the  oath  of  the  party  making  them.     Books  of  this  public  nature 

^  Story  on  Conflict  of  Laws,  643;  Robinson  v.  Oilman,  7  Shepl.  299. 


340  ECCLESIASTICAL  LAW. 

being  themselves  evidence  Avhen  produced,  their  contents  may  be 
proved  by  a  copy  duly  authenticated,  and  the  book  itself  will  not 
be  required  to  be  produced,  only  when  a  question  arises  as  to  its 
identity,  or  the  handwriting,  or  where  a  doubt  arises  as  to  its 
authenticity.  Where  by  the  ecclesiastical  canons  an  inquiry  is 
directed  to  be  made  from  time  to  time  of  the  temporal  rights  of  the 
clergyman  in  every  parish  to  be  returned  to  the  bishop's  regis- 
try. This  return,  which  is  denominated  a  terrier,  is  held  to  be 
admissible  in  evidence  by  the  English  courts,  in  accordance  with 
the  principle,  that  to  entitle  a  book  to  official  character  it  is  not 
necessary  that  it  be  required  to  be  kept  by  an  express  provision 
of  a  statute  nor  that  the  nature  of  the  office  should  render  the 
book  indispensable.  It  will  be  sufficient  if  it  be  kept  by  the 
direction  of  proper  authority  and  in  pursuance  of  such  authority 
and  direction.  By  the  statutes  of  the  State  of  Iowa,  books  of 
history,  science,  and  art,  also  published  maps  and  charts,  made 
by  persons  indifferent  between  the  parties  are  presumptive  evi- 
dence of  facts  of  general  interest.  Code  of  1851,  §  2492.  But 
all  evidence  of  this  sort  must  be  considered  as  mere  hearsay,  and 
as  such  is  not  of  a  very  satisfactory  character.  Historical  facts, 
however,  of  general  and  public  notoriety,  may  be  proven  by 
reputation,  and  that  reputation  may  be  established  by  historical 
works  of  known  character  and  accuracy ;  but  evidence  of  this 
sort  is  confined  in  a  great  measure  to  ancient  facts  which  do  not 
presuppose  better  evidence  in  existence ;  and  when  from  the  na- 
ture of  the  transaction,  or  the  remoteness  of  the  period,  or  the 
public  and  general  reception  of  facts,  a  just  foundation  is  laid  for 
general  confidence.'  15ut  the  work  of  a  living  author,  who  is 
within  the  reach  of  process  of  the  court,  can  hardly  be  deemed 
of  this  nature.  He  may  be  called  as  a  witness.  He  may  be  ex- 
amined as  to  the  source  and  accuracy  of  his  information ;  and 
especially  if  the  facts  which  he  relates  are  of  a  recent  date,  and 
may  be  fairly  presumed  to  be  within  the  knowledge  of  many  liv- 
ing witnesses  from  whom  he  has  derived  his  materials.^  For  this 
reason  the  statements  of  the  chroniclers,  Stow  and  Sir  W.  Dug- 
dale,  were  held  inadmissible  as  evidence  that  a  person  took  his 


'  1  Starkie's  Ev.  pi.  1,  gg '40-44,  pp.  60-G4;  id.  pi.  2,  §55,  pp.  180,  181. 
2  Bull.  N.  P.  248,  2-19. 


PUBLIC  DOCUMENTS.  341 


sccat  by  special  summons  to  Pcarliament  in  the  reign  of  Henry 
Vlir.  The  general  rule  in  regard  to  certiHcates  given  by  per- 
sons in  official  station  is  tliat  the  la"\v  never  recognizes  or  allows 
such  certificate  as  to  a  mere  matter  of  fact,  unless  tlie  same  is 
authorized  by  a  statute.  If  the  officer  was  bound  to  record  tlie 
fact,  then  the  proper  evidence  is  a  copy  of  the  record  duly  au- 
thenticated ;  but  as  to  matters  that  he  was  not  bound  to  record, 
his  certificate  is  extra-official,  and  is  entitled  to  no  greater  weight 
than  the  statement  of  a  private  person,  and  is  therefore  not  ad- 
missible in  evidence.^ 

Where  an  officer's  certificate  is  made  evidence  of  certain 
facts  he  can  not  extend  its  effect  to  other  facts  by  including  them 
in  the  certificate;  but  such  unauthorized  facts  will  be  suppressed. 
The  same  principle  applies  to  the  return  of  an  officer.  Thus,  an 
officer's  return  on  a  writ  of  attachment  that  he  gave  the  defend- 
ant a  copy  of  the  writ  at  a  place  out  of  his  precinct  is  extra-offi- 
cial, and  is  not  evidence  of  notice  to  the  defendant.^ 

^  Clerks  of  reli<Tious  and  otl)er  corporations,  and  other  recordin^r  officers,  may 
make  and  verify  copies  of  their  records;  and  in  doing  so  act  under  the  obliga- 
tion of  thei<*  oath  of  office.  Of  the  verity  of  such  copies  their  certificates  are 
evidence.  But  it  is  no  part  of  their  duty  to  certify  facts,  nor  can  their  certifi- 
cates be  received  as  evidence  of  such  facts.      Oakes  v.  Hill,  1 -i  Pick.  448. 

The  certificate  of  the  justice  states  that  the  defendants,  on  the  trial,  claimed 
to  have  the  rent  secured  by  the  covenant  allowed  to  them  by  the  jury  in  making 
up  their  verdict.  I  incline  to  think  tliat  the  fact  stated  by  the  justice,  to-wit, 
that  the  defendants  claimed  to  have  the  rent  allowed  them  by  the  jury,  is  extra- 
judicial, and  regularly  no  part  of  his  record.  The  certificate  of  a  justice  must 
contain  the  process,  pleadings,  evidence,  verdict,  and  judgment  Beyond  these 
he  is  not  called  on  to  certifj'.  If  he  goes  further  his  statements  conclude  no  one. 
Wolf  v.  Washburn,  G  Cowen,  265. 

An  account  stated  at  the  treasury  department,  which  does  not  arise  in  the 
ordinary  way  of  doing  business  in  that  department,  can  derive  no  additional 
validity  from  being  certified  under  the  Act  of  Congress.  Such  a  statement  can 
only  be  regarded  as  establishing  items  for  moneys  disbursed  through  the  ordi- 
nary channels  of  the  department,  where  the  transactions  are  shown  by  its  books. 
In  these  cases  the  officers  may  well  certifj',  for  they  must  have  official  knowledge 
of  the  facts  stated.  But  where  moneys  come  into  the  hands  of  an  individual,  as 
in  the  case  under  consideration,  the  books  of  the  treasury  do  not  exhibit  the 
facts,  nor  can  they  be  officially  known  to  the  officers  of  the  department.  In  this 
case,  therefore,  the  claim  must  be  established  not  by  the  treasury  statement,  but 
by  the  evidence  on  which  that  statement  was  made.  United  States  v.  Biifo7'd, 
8  Curtis,  270. 

^  The  Court  were  of  the  opinion  that  it  was  apparent  upon  the  record  that 

23 


342  ECCLESIASTICAL  LAW. 


CHAPTER  VI. 

PRIVATE     WRITINGS. 

Under  this  head  may  be  comjjrisecl  all  writings  which  are  not 
of  a  public  character,  and  are  not  treated  of  in  any  of  the  pre- 
ceding chapters,  and  from  their  very  nature  when  produced  in 
evidence  they  must  be  proved  to  be  genuine,  for  they  do  not,  like 
public  acts  of  legislation  and  public  records,  prove  themselves*, 
therefore,  when  produced,  their  execution  must  be  proved,  or, 
if  they  are  lost  or  destroyed,  their  absence  must  be  duly  ac- 
counted for,  and  their  loss  supplied  by  secondary  evidence  of 
their  contents.  Where  the  instrument  is  lost  the  party  is  re- 
quired to  make  some  proof  that  sUch  instrument  existed ;  that  a 
diligent  search  has  been  made  for  it  in  the  place  where  it  was 
most  likely  to  be  found.  If  the  nature  of  the  case  admits  of 
such  proof,  evidence  of  this  character  is  addressed  to  the  court 
or  other  presiding  officer,  and  is  not  for  the  consideration  of  the 
jury  or  committee.  And  in  determining  it,  the  party  will  not  be 
restricted  to  facts  peculiarly  Avithin  his  knowledge,  but  Avill  be 
permitted  to  state  other  facts,  such  as  the  search  for  the  instru- 
ment elsewhere  than  amongst  his  own  papers,  inquiries  made  of 
other  persons  who  were  shown  to  have  been  custodians  of  it,  and 
their  replies  to  such  inquiry.^ 

the  original  defendant  was  not  summoned,  and  that  he  had  no  notice  of  the  suit, 
as  the  officer's  return  in  regard  to  the  fact  of  leaving  a  copy  of  the  writ,  was 
extra-official,  and,  if  the  notice  in  any  form  would  have  rendered  the  attachment 
valid,  the  officer's  return  was  not  evidence  of  any  such  notice.  Arnold  v. 
Tourtellot,  13  Pick.  174. 

^  The  practice  that  prevails  of  allowing  a  party  or  an  interested  person  to  tes- 
tify to  certain  matters  in  the  progress  of  a  cause  does  not  arise  from  the  neces- 
sity of  the  case,  or  because  lie  alone  is  supposed  to  possess  the  knowledge  of  the 
facts  to  be  shown  as  was  urged  on  the  argument,  but  It  is  permitted  because 
the  evidence  is  collateral  and  addressed  to  the  Court.  Hence  we  daily  see  par- 
ties testifying  to  matter  of  which  other  persona  might  be  as  well  informed  as 
they,  such  as  a  notice  to  produce  papers,  the  death  of  a  subscribing  witness,  or 
tl)at  he  is  out  of  the  State,  or  the  like.  'J'he  cases  cited  by  the  plaintiff's  coun- 
eel  show  the  rule  to  be  well  settled  both  in  this  Court  and  in  the  court  for  the 
correction  of  errors.  This  practice  is  entirely  familiar,  and  it  appears  difficult 
to  see  any  difference  in  principle  between  it  and  the  right  of  the  plaintifif  here  to 


PRIVATE  WRITINGS.  343 


The  question  has  often  been  raised  whether  secondary  evi- 
dence of  the  contents  of  a  private  writing  is  admissible  where  tlie 
writing  was  shown  to  be  beyond  the  control  of  the  parties  seek- 
ing to  use  it,  and  out  of  the  jurisdiction  of  the  court,  so  that  its 
production  would  not  be  enforced  by  the  order  or  decree  of  a 
Court  of  Chancery  upon  a  bill  for  discovery  or  otherwise,  or  upon 
a  subpoena  duces  tecum.  The  authorities  are  not  uniform.  In 
Connecticut  it  was  held  that  secondary  evidence  was  not  admis- 
sible.^ The  same  rule  was  adhered  to  in  Louisiana.^  But  it 
is  believed  that  the  weight  of  authority  is  the  other  way ;  and 
such  certainly  would  be  in  harmony  with  the  reason  of  the  rule.^ 
It  was  held  by  the  Supreme  Court  of  New  York,  that  an  instru- 
ment having  been  executed  at  Caraccas,  and  it  appearing  accord- 
ing to  the  law  of  that  place  that  the  original  was  deposited  with 
the  notary  and  kept  by  him.  the  parties  only  being  allowed  to 
have  certified  copies,  that  this  was  sufficient  to  account  for  the 
non-production  of  the  original.^  The  same  rule  prevails  where 
the  instrument  is  destroyed  without  the  fault  of  the  party  claim- 
be  allowed  to  testify  to  a  search  at  large  for  the  paper  of  which  he  sought  to 
give  parol  evidence.  As  far  as  I  am  informed  it  is  usual  to  allow  a  party  to  give 
evidence  by  his  own  oath  of  search  generally  for  papers  asserted  to  be  lost  or 
destroyed.      Vedder  v.  Wilkins^  5  Denio,  65.* 

^  Tuwnsend  v.  Aiwater,  5  Day  R.  298. 

2  Letois  v.  Batty,  8  Mart.  Lou.  Rep.  287,  288,  &  289. 

'8  Monroe,  532;  Bailey  v.  Johnson,  9  Cowen,  115;  Mays  Ad.  v.  May, 
I  Porter,  131  ;   Bunch's  Admrs.  v.  Hurst's  Admr.  3  Dess.  eq.  R.  290,  291. 

*  With  respect  to  the  instrument  by  which  it  is  alleged  that  the  plaintiff  be- 
came security  for  the  defendant,  the  proof  is  abundantly  sufficient  to  show  that 
the  original  could  not  be  produced  on  the  trial.  According  to  the  laws  of  the 
Spanish  Province  where  this  instrument  was  executed,  the  original,  or  the  one 
actually  signed  by  the  parties,  remains  with  the  notary  before  whom  it  was  ex- 
ecuted. Copies,  certified  and  signed  by  the  notary,  are  delivered  to  the  parties; 
and  such  copies,  thus  authenticated,  are  received  in  evidence  in  all  the  Spanish 
tribunals.  It  is  unnecessary  definitely  to  say  whether  the  lex  loci  ought  so  far  to 
prevail  as  to  require  these  notarial  copies  to  be  admitted  in  evidence  here  in  the 
same  manner  as  in  the  Spanish  tribunals.  I  am  inclined  to  think,  however,  thoy 
ought  not  to  be  received  as  sufficient  ^sf*  se,  but  I  can  not  think  they  are  to  be 
entirely  disregarded  and  treated  as  mere  nullities.  They  ought  to  be  received  as 
forming  a  part  of  the  inferior  evidence  of  the  execution  of  the  instrument  where 
the  original  can  not  be  produced  and  proved.   Mauri  v.  Hefernan,  13  John.  72. 

*See,  al.so,  Jackson  v.  Frier,  16  John.  193;  Chamberlain  v  Gorham.  20  id.  144;  Dan  v.  Brown, 
4  Cowen,  4S3 ;  Jackson  v.  Betts,  G  id.  377. 


344  ECCLESIASTICAL  LAW. 


ing  the  benefit  of  it.  What  degree  of  diligence  in  tlie  search  for 
a  lost  or  destroyed  instrument  is  necessary  in  order  to  lay  the 
foundation  for  the  introduction  of  secondary  evidence  is  not 
easily  defined;  each  case  must,  to  some  extent,  depend  upon  its 
ou'n  peculiar  circumstances  and  the  sound  judicial  discretion  of 
the  court  or  other  presiding  officer.  The  question  whether  the 
loss  or  destruction  of  the  instrument  is  sufficiently  established  to 
admit  secondary  evidence  of  its  contents,  is  to  be  determined  by 
the  court;  but  the  party  should  show  that  he  has  in  good  faith 
exhausted,  to  a  reasonable  degree,  all  the  sources  of  information 
and  means  of  discovery  which  are  accessible  to  him.  If,  how- 
ever, the  instrument  or  paper  was  supposed  to  be  of  no  value,  or 
of  the  character  of  papers  which  are  not  ordinarily  presei'ved,  or 
is  ancient,  a  less  degree  of  diligence  will  be  required.  And  where 
such  paper  or  instrument  is  required  to  be  kept  or  deposited  in  a 
public  office  or  other  particular  place,  such  office  or  place  must 
be  searched.  If  it  belong  to  the  custody  of  certain  persons,  or  is 
shown  to  have  been  in  their  custody  or  possession,  they  should  in 
general  be  called  and  sworn  to  account  for  it  if  they  are  within 
reach  of  the  process  of  court.  It  would  be  sufficient,  prob- 
ably, if  proof  was  made  by  a  person  who  saw  the  search  con- 
ducted, taking  in  connection  the  declarations  of  the  parties 
making  such  search.  Such  declaration,  if  made  at  the  time  of 
the  search,  may  properly  be  considered  as  part  of  the  res  gesfce, 
and  therefore  admissible.  If  the  instrument  was  executed  in  du- 
plicate or  triplicate,  the  loss  of  all  tlie  parts  must  be  proved  in 
order  to  lay  the  foundation  for  the  introduction  of  secondary  evi 
dence.  Before  secondary  evidence  can  be  resorted  to  for  proof 
of  the  contents  of  a  lost  instrument,  it  must  ordinarily  be  proved 
to  have  been  executed.^      It  is  sometimes  made  a  question  where 

^  I  think  there  is  a  material  distinction  between  papers  and  writings  which 
cea.se  to  be  of  any  use  or  value  or  any  evidence  of  title,  and  such  as  are  the 
muniments  of  one's  title.  In  the  first  case,  the  slightest  proof  of  loss,  or  even 
presumption  from  lapse  of  time  of  a  loss,  ought  to  entitle  the  party  to  give  evi- 
dence of  the  contents;  whilst  in  the  other  case,  the  proof  should  be  more  strict. 
We  have  high  authority  for  saying  that  the  rigor  of  the  law  has  been  relaxed  on 
the  subject  of  proving  the  loss  of  papers.  Livingston  v.  Rogers,  1  Gaines's 
Cases  in  Error,  28;   Jackson  v.  Hoot,  18  John.  T3. 

See  3  Hawk's  Rep.  3(54 ;    Tate  v.  Pemi,  7  Mart.  Lou.  Rep.  N.  S.  448,  551 ; 
Eure  V.  Pittman,  3  Hawk's  Rep.  3G4;    The  Uiica  Ins.  Co.  v.  CahhceU,  3  Wen- 


PRIVATE  WRITINGS.  34;j 


an  instrument  is  lost  or  destroyed,  that  has  been  witnessed,  whether 
it  is  necessary  to  call  the  attesting  witnesses.  In  some  of  the 
cases  it  has  been  held  that  the  execution  of  the  instrument,  as 
well  as  its  contents,  may  be  proved  by  the  admission  of 
the    party.  ^ 

The  production  of  an  instrument  in  writing  in  which  another 

dell,  296  ;  Taylor  v.  Biggs,  1  Peters,  591,  596,  597;  Patterson  v.'Winn,  5  Peters, 
242;  Jackson  ex  dem.  Bush  v.  Hashbrouck,  12  John.  192;  M'Canhay  v.  The 
Center  and  Kishacoquillas  Turnpike  Co.,  1  Pennsylvania  Rep.  426;  Jackson  \. 
Russell,  4  Wendell,  543;  Proprietors,  etc.  v.  Battles,  6  Vermont  Rep.  .399; 
Rochell  V.  Holmes,  2  Bay's  Rep.  487. 

^  If  the  confessions  of  the  defendant,  either  by  parol  or  in  writing,  are  at  all 
to  be  received  in  evidence,  they  are  amply  sufficient,  in  this  case,  to  show  a  due 
execntion  of  the  instrument  whereby  the  plaintiff  became  his  surety.  This  in- 
strument was  not  under  seal,  so  that  no  objection  on  that  account  can  be  made. 
I  can  see  no  objection,  nor,  indeed,  were  any  made  on  the  trial,  to  the  admissi- 
bility of  such  evidence.     Mauri  v.  Hfleernan,  13  John.  74. 

It  appears,  indeed,  to  be  a  technical  rule  in  the  English  courts  not  to  allow 
the  confessions  of  the  party  to  be  evidence  of  the  execution  of  sealed  instruments, 
but  to  require  the  attendance  of  the  subscribing  witness,  unless  it  appear  that 
he  can  not  be  pi-ociired.  Doug.  2i6,  217;  Abbot  v.  Plumbe.  I  have  not  met 
with  any  adjudged  cases  before  the  Revolution  in  which  this  rule  is  laid  down, 
and  therefore  think  we  are  at  liberty  to  decide  this  case  on  principle  and  on  the 
analogy  it  bears  to  other  cases.  It  is  a  sound  principle,  that  the  voluntary  con- 
fessions of  a  party  are  the  highest  evidence,  and  in  cases  affecting  life  and  per- 
sonal liberty,  this  rule  is  daily  admitted  and  practiced  upon.  It  is  another  prin- 
ciple admitted  in  the  case  of  Abbot  v.  Plumbe  (Doug.  2 1 6),  that  if  the  subscribing 
witness  deny  the  execution  of  a  deed,  you  may  prove  it  aliunde.  From  these 
considerations,  that  we  are  unfettered  by  any  positive  adjudication  anterior  to  the 
Revolution,  that  the  party's  own  confession  Is  the  highest  evidence,  and  that  you 
may  contradict  the  subscribing  witness,  I  think  it  results  that  an  Instrument, 
though  attested  by  a  subscribing  witness,  may  be  proved  by  the  confession  of  the 
party  who  gave  it.  Allowing  evidence  of  confession  does  not  touch  upon  the  rule 
that  requires  the  best  evidence  of  whicii  the  nature  of  the  case  is  susceptible. 
That  rule  means  only  that  inferior  evidence  shall  not  be  given  when  higher  evi- 
dence is  in  the  possession  of  the  party,  or  Is  presumed  to  be  within  his  power. 
The  confession  of  a  party  that  he  gave  a  note,  or  any  instrument  precisely  iden- 
tified. Is  as  high  proof  as  that  derived  from  a  subscribing  witness.  The  notion 
that  the  persons  who  attest  an  instrument  are  the  only  witnesses  agreed  upon  to 
prove  it,  is  not  conformable  to  the  truth  of  transactions  of  this  kind,  and,  to 
speak  with  all  possible  delicacy,  Is  an  absurdity.  At  nisi  prius,  for  some  years 
past,  the  subscribing  witnesses  have  been  dispensed  with  on  proof  of  the  confes- 
sion of  the  party  who  gave  the  instrument.  To  allow  such  evidence  is  highly 
convenient,  and  produces  no  manner  of  injury.    Hall  v.  Phelps,  2  John.  451. 

See,  also,  Thomas  v.  Harding,  8  Greenlf.  417;  Corbin  v.  Jackson,  14 
Wendell,  619. 


346  ECCLESIASTICAL  LAW. 


person  has  an  interest  may  be  enforced  either  by  a  bill  in  Chan- 
cery, by  an  order  of  the  court  where  it  is  shown  to  be  in  posses- 
sion of  the  opposite  party,  or  by  a  subpoena  duces  tecum  directed 
to  the  person  Avho  has  them  in  possession.  Since  the  passage  of 
the  statute  in  the  several  States  making  parties  competent  wit- 
nesses without  regard  to  their  interest,  we  presume  that  the  same 
form  of  process  may  be  used  to  compel  the  production  of  private 
writings  in  their  possession  that  is  used  to  compel  the  production 
when  in  the  possession  of  third  persons.  Where  the  writings  are 
in  the  possession  or  under  the  power  and  control  of  the  adverse 
^party,  in  addition  to  the  means  to  compel  their  production  that 
we  have  before  enumerated,  the  practice  is  to  give  such  adverse 
party  or  his  attorney  notice  to  produce  the  original,  or  that,  upon 
a  failure  so  to  comply  with  such  notice,  evidence  will  be  given 
of  tlieir  contents.  But  before  a  party  can  be  called  upon  to  pro- 
duce a  document  for  the  purpose  of  evidence  it  must  be  shown 
to  be  in  his  possession.^ 

Notice  to  produce  the  writing  should  be  sufficiently  explicit 
to  apprise  the  opposite  party  of  the  character  of  the  instrument. 
And  where  the  instrument  is  not  produced  in  obedience  to  the 
notice,  such  notice  is  not  sufficient  to  admit  the  party  to  give 
secondary  evidence  of  its  contents;  he  must  prove  the  existence 
of  the  original.  If,  liowever,  the  instrument  is  produced  in  obe- 
dience to  the  notice,  no  proof  of  its  execution  is  required,  its 
production  by  the  party  being  an  implied  admission  that  the 
writing  is  genuine.  After  notice  and  refusal  to  produce  a  paper, 
and  secondary  evidence  given  of  its  contents,  the  adverse  party  can 
not  offer  the  instrument  in  evidence  in  contradiction  of  the  second- 
ary evidence.  To  allow  such  practice  would  be  to  experiment  with 
the  court  and  the  opposite  party. ^  A  notice  to  produce  a  writ- 
ten instrument  may  be  given  either  verbally  or  in  writing,  and 
may  be  served  upon  either  the  party  or  his  attorney.  When  the 
notice  is  in  writing  it  may  be  directed  to  the  party  or  his  attorney, 
and  may  be  served  on  either.  It  must  describe  the  writing  with 
such  particularity  to  apprise  the  opposite  party  of  the  particular 
instrument  or  writing  intended  to  be  called  for.     As  to  the  time 


^  Laxlon  v.  Reynolds,  2S  Eiig.  Law  &  Eq.  558. 
2  Doe  V.  Ilodfjson,  4  P.  &  D.  142. 


PRIVATE  WRITINGS.  347 


of  serving  of  notice,  no  definite  rule  can  be  establisliecl.  All  that 
the  law  requires  is,  that  it  be  a  sufficient  notice  to  enable  the 
opposite  party  to  comply  with  it.  If  it  should  appear  that  the 
paper  was  with  the  party  in  court  present  at  the  trial,  a  motion 
for  the  production  of  such  paper  during  the  progress  of  the  trial 
is  held  to  be  reasonable  notice.  ^ 

As  the  law  now  stands  in  most  of  the  States,  the  party  may 
be  called  and  examined  as  to  his  possession  of  the  instrument  in 
question ;  or  the  party  seeking  to  charge  him  with  its  possession 
may  make  out  and  establish  the  fact  by  other  and  independent 
evidence.  When  the  party  resides  at  a  distance  from  the  place 
of  trial,  a  service  on  him  at  the  place  of  trial,  or  after  he  has  left 
home  on  the  day  set  for  the  trial,  is  not  ordinarily  sufficient,  un- 
less the  case  should  happen  to  be  continued.  But  where  a 
party  has  gone  abroad,  leaving  his  case  to  the  management 
of  his  attorney,  it  will  be  presumed  that  he  left  with  his 
attorney  all  the  papers  and  documents  material  to  the  case, 
and  a  notice  served  on  the  attorney  at  the  place  of  trial  Avould 
be  sufficient.^ 

A  party  being  called  upon  for  the  production  of  an  instru- 
ment which  he  is  entitled  to  retain  until  the  commencement  of 
the  trial,  and  he  refusing  to  produce  it  until  that  time,  will 
not  entitle  the  opposite  party  to  introduce  secondary  evidence 
to  prove  its  contents.  The  production  of  a  book  or  other  writ- 
ing upon  notice  does  not  make  it  evidence  in  the  cause  unless  the 
party  calling  for  it  inspects  it  so  as  to  make  himself  acquainted 
with  its  contents.  The  English  rule  is,  that  when  it  is  so  ex- 
amined it  becomes  evidence  for  both  parties.  But  our  Amer- 
ican courts  are  not  uniform  on  the  question.  The  English  rule 
was  adopted  in  Jordan  v.  WiUcins,  2  Wash.  C.  C.  482,  484,  and 
in  many  other  reported  cases.' 

^  It  must  be  an  extraordinary  ease  where  a  motion  to  produce  a  paper,  given 
during  the  progress  of  the  trial,  can  be  held  to  be  reasonable.  But  if  it  should 
be  apparent  that  the  paper  was  with  a  party  in  court  present  at  the  trial,  such  a 
notice  might  be  said  to  be  reasonable.  But,  surely,  where  the  paper  is  not  in 
court,  and  no  proof  that  it  was  ever  in  tlie  possession  of  the  party  notified,  such 
short  notice  can  not  be  reasonable.      Choteau  et  al.  v.  Raitt,  20  Ohio,  147. 

2-2  M.  &  Rob.  179. 

^  Randel  v.  Chesapeake  &  Del.  Canal  Co.  1  Harrington,  233,  284;  Penob- 
scot Broom  Co.   v.   Samson,  4  Shepley,  224 ;   Anderson  v.   Boot,  8  Sm.   &  M. 


348  ECCLESIASTICAL  LAW. 


But  Spencer,  in  delivering  the  opinion  of  the  Supreme  Court 
of  New  York,  denied  the  correctness  of  the  English  rule;  and 
said  that  it  appeared  to  him  that  the  notice  to  produce  a  paper 
and  calling  for  its  inspection  ought  to  be  considered  as  analogous 
to  a  bill  for  discovery,  where  most  certainly  the  answer  is  not 
evidence  but  for  the  adverse  party.  Probably  the  better  rule  is 
the  one  laid  down  by  the  Supreme  Court  of  Pennsylvania,  where 
it  was  held  that  where  books  are  produced  on  notice  and  entries 
read  in  evidence  by  the  party  calling  for  them,  the  party  produc- 
ing them  may  read  other  entries  necessarily  connected  with  the 
former  entries;  thus  modifying  to  some  extent  the  English  and 
American  decisions  on  this  question ;  or  at  least  taking  a  middle 
ground,  and  one  that  is  admitted  by  both  sides  to  be  tenable. 
Where  a  Avritten  instrument  appears  to  have  been  altered  it  is 
incumbent  on  the  party  offering  it  in  evidence  to  explain  this  ap- 
pearance. Probably  this  rule  would  not  obtain  Avhere  the  instru- 
ment was  produced  by  the  opposite  party  on  notice  and  offered 

nfi2;  Reed  v.  Anderson^  S.  J.  C.  Mass.  Middlesex  Oct.  Term,  18.J3,  Law  Rep. 
July,  1858,  p.  IG'J. 

The  English  rule  seems  to  bo  that  if  the  party  calling  for  the  books  inspects 
them  so  far  as  to  become  acquainted  with  their  contents,  they  are  thereby  made 
competent  evidence,  and  maybe  used  by  both  parties.  1  Greenli".  Ev.  §  5G3. 
In  the  case  of  Calvert  v.  Fowler,  7  C.  «&  P.  380,  the  rule  was  applied  in  the  case 
of  an  account  book  where  the  party  calling  for  it  had  taken  the  book  and  turned 
over  several  pages,  it  was  held  that  in  so  doing  he  had  made  the  book  evidence 
in  the  case.  It  is,  however,  said  by  Mr.  Greenleaf,  in  his  treatise  on  evidence, 
that  in  the  American  courts  the  law  is  not  entirely  settled  on  this  point.  lu 
New  York  the  rule  was  questioned  by  Spencer,  J.,  in  the  case  of  Kenny  v.  Clark- 
son,  1  Johns.  385,  395,  and  by  Tliompson,  J.,  in  the  case  of  Lawrence  v.  Van 
Home,  1  Caines,  27G,  28G.  In  Withers  v.  Gillespy,  7  S.  &  R.  10,  it  was  held 
where  books  are  produced  on  notice  and  entries  are  read  in  evidence  by  the 
party  calling  for  them,  the  party  producing  them  may  read  other  entries  neces- 
sarily connected  with  the  former  entries.  The  only  conflict  in  the  cases,  or  real 
doubt  that  seems  to  have  arisen  in  the  reported  cases,  is,  whether  the  mere  act  of 
inspecting  and  perusing  the  books  by  the  party  calling  for  them  makes  them 
evidence.  Tlie  result  of  the  examination  of  the  cases  seems  to  be,  first,  That 
all  tlic  authorities  agree  that  mere  calling  for  the  books  is  not  enough  to  make 
them  evidence;  second,  That  wlietlicr  calling  for  the  books  of  the  opposite  party 
and  inspecting  thom,  and  doing  nothing  more,  makes  the  book  evidence,  is  a 
mooted  jwint;  third,  I'hat  the  books  when  [)roduced  upon  notice,  if  inspected  by 
the  party  calling  for  them,  and  actually  used  as  evidence  by  him,  are  thereby 
made  evidence  for  the  other  party.  3  Phill.  Ev.  4th  Am.  Ed.  1191  ;  Common- 
wealth v.  Davidson,  1  Gushing,  45. 


FOREIGN  JUDGMENTS.  349 

in  evidence  by  the  party  culling  foi'  its  production.  Every  mate- 
rial alteration  appearing  on  the  face  of  a  written  instrument  ren- 
ders it  suspicious,  and  devolves  upon  the  party  offering  such 
instrument  in  evidence  the  burthen  of  explaining  such  alteration. 
A  party  Avho  receives  a  paper  interlined  in  a  material  part  or 
otherwise  altered  should  see  that  the  interlineation  or  alteration  is 
noted  in  the  attestation,  otherwise  he  must  assume  the  responsi- 
bility of  explaining  it  afterwards.  Where  the  alteration  is  reg- 
ularly noted  in  the  attestation  clause  it  sufficiently  accounts  for 
the  interlineation  or  alteration,  and  the  instrument  is  relieved 
from  suspicion.  ^ 

The  law  must  presume  that  the  intei'lineation  or  alteration 

^  The  rule  is  well  settled  in  England  and  in  many  of  the  courts  of  this  coun- 
try that  it  is  incumbent  upon  the  party  offering  in  evidence  an  instrument  that  ap- 
pears to  have  been  altered  to  explain  such  alteration,  and  tliat  in  tlie  absence  of 
all  evidence  either  from  the  appearance  of  the  instrument  itself  for  otherwise,  to 
show  when  the  alteration  was  made;  it  must  be  presumed  to  have  been  subse- 
quent to  the  execution  and  delivery  of  the  instrument.  11  N.  H.  i?9o ;  13  do. 
386;  5  Bing.  183;  2  Manning  &  Granger,  901);  2  Harrington,  390 ;  22  Wen- 
dell, 393;  2  Kelly,  128;  1  Green.  Ev.  §  5G4.  Such  we  believe  to  be  the  true 
rule.  The  case  oi  Knight  v.  Clemeiiia,  S  Adol.  &  Ellis,  215,  goes  still  further, 
for  in  that  case  it  was  held  that  the  alteration  v/as  not  sufficiently  explained  by 
the  appearance  of  the  instrument  alone,  upon  the  inspection  of  which  the  jury 
had  found  that  the  alteration  was  made  at  the  time  of  execution,  but  that  some 
other  proof  dehors  the  writing  was  necessary.  We  are  not  prepared  to  go  that 
far;  we  think  the  alteration  may  be  frequently  sufficiently  explained  by  the  in- 
spection of  the  instrument  itself.      Walters  v.  Short,  5  111.  258. 

See,  also,  2  Thomas  Coke,  232,  marginal  and  188  top  paging,  10  S.  &  R. 
64,  170;  1  Tomlin's  Law  Die.  524;  Bour.  Law  Die.  533;  2  Black.  Com.  308; 
Bull.  N.  P.  268  ;  2  Starkie's  Ev.  272;  N.  F.  ibid.  273,  and  N.  Y.  1  Leigh's  N.  P. 
657;  Humphreys  v.  Guillon,  13  New  H.  385;  Tedlie  v.  Dill,  2  Kelly,  128,  133; 
Millicken  v.  Beauchamp,  2  Mill  Law  Rep.  290,  cited  in  2  Phill.  Ev.  6  Cowen  & 
Hill's  notes,  17;  Jackson  v.  Osborne,  2  Wendell,  555;  Eerrick  v.  Malen,  22 
Wendell,  388;  Hill  v.  Barnes,  11  New  Hamp.  395;  Botcers  v.  Jewell,  2  New 
Hamp.  543;  Johnson  v.  Diike  of  Marlborough,  3  Eng.  Com.  Law  Rep.  360; 
Bishop  V.  Chambers,  14  do.  207;  Hinman  v.  J)ickinson,  15  do.  409;  Taylor  \. 
Moseley,  25  do.  393;  Dcshrow  v.  Weatherby,  ibid.  636;  Knight  v.  Clements,  35 
do.  377  ;  Clifford  v.  Parker,  40  do.  687 ;  Prevost  v.  Graty,  1  Peters  C.  C.  R.  364; 
Headman  v.  Bratten,  2  Harrington,  396;  Davis  v.  Jenney,  1  Mete.  221;  GiU 
lett  V.  Sweat,  1  Gilm.  475;  Mo7-ris's  Lessee  v.  Vanderen,  1  Dall.  67;  Newell  v. 
Maybury,  3  Leigh,  350;  Mills  v.  Starr,  2  Bailey,  359  ;  Railroad  Bank  v.  Lane, 
7  Howard's  Mississippi  Reports,  414;  Wilson  v.  Henderson,  9  Smedes  &  Mar. 
375  ;  Cariss  v.  Tattersall,  40  E.  C.  L.  R.  677  ;  Hodge  v.  Gilman  et  al.  20  111.  441. 


350 


ECCLESIASTICAL  LAW. 


was  made  either  before  or  after  the  instrument  was  executed ; 
and,  if  the  latter,  no  man  would  be  safe  in  signing  any  paper,  no 
matter  how  fairly  drafted,  for  the  holder  iiaving  it  in  his  posses- 
sion and  under  his  control  could  interline  or  alter  it  at  pleasure, 
and  then  call  upon  the  maker  to  show  that  the  alterations  were 
made  after  its  execution,  which,  if  the  alterations  were  made 
with  the  same  hand  that  wrote  the  body  of  the  instrument,  it 
AYOuld  in  most  cases  be  impossible  for  him  to  do.  This  presump- 
tion, however,  arising,  that  the  instrument  Avas  altered  after  its 
execution,  is  capable  of  being  explained  by  the  appeai'ance  of  the 
instrument  itself.  Thus,  if  it  appears  that  the  ink  and  the  hand- 
writing of  the  body  of  the  instrument  are  the  same,  and  that  the 
instrument  is  not  in  the  handwriting  of  the  party  claiming  the 
benefit  of  it,  or  if  it  appear  that  the  alteration  is  against  the  in- 
terest of  the  party  deriving  title  under  it,  or  if  it  appear  that  the 
alteration  instead  of  increasing  the  liability  of  the  maker,  lessens 
it,  these  or  like  circumstances  are  sufficient  to  change  the  bur- 
then of  proof.  Some  of  the  courts,  however,  have  held  that  in- 
asmuch as  ""raud  is  never  to  be  presumed,  if  no  particular  cir- 
cumstances of  suspicion  attaches  to  an  altered  instrument,  the 
alteration  is  to  be  presumed  innocent  or  made  prior  to  its 
execution.^ 

The  rule  as  stated  by  Mr.  Greenlcaf  is,  that  "if  any  ground 
of  suspicion  is  apparent  on  the  face  of  the  instrument,  the  laAV 
presumes  nothing,  but  leaves  the  question  of  the  time  when  it 
was  done  as  well  as  the  person  by  whom  it  was  done,  and  the 
intent  with  which  the  alteration  was  made,  as  a  matter  of  fact 
to  be  ultimately  found  by  the  jury  upon  proof  to  be  adduced  by 


^  The  law  upon  this  subject  is,  that  if  any  ground  of  suspicion  is  apparent  on 
the  face  of  the  instrument,  the  law  presumes  nothing,  but  leaves  the  question  of 
the  time  when  it  was  done,  as  well  as  that  of  the  person  by  whom  it  was  done, 
and  the  intent  with  which  ihe  alteration  was  made,  as  matters  of  fact  to  be  found 
by  the  jury.  1  Green.  Bv.  5'.)!),  §  5(i 4 ;  Vanhorn  v.  Dorrance,  2  Dallas,  304; 
Jackson  V.  Osborne,  2  Wendell,  255;  2  Starkie's  R.  278;  4  N.  Hamp.  171;  11 
Conn.  531;  Boss  v.  Gould,  5  Greenl.  204.  So  if,  upon  the  production  of  an 
instrumf^nt  in  court,  it  upjiears  to  have  liave  been  altered,  it  is  incumbent  on  the 
party  offering  it  in  evidence  to  explain  this  appearance.  Every  such  alteration 
detracts  from  the  credit  of  the  instrument,  and  renders  it  suspicious,  and  this 
Buspicion  the  party  producing  it  must  remove.    Gillctt  et  al.  v.  Sioeat,  1  Gilm.  489. 


PRIVATE  WRITINGS.  351 


the  party  offering  the  instrument  in  evidence."  But  this  conflict 
of  authority  may  to  some  extent  be  harmonized  when  we  come  to 
examine  the  cases  in  which  the  question  of  alteration  has  arisen. 
For  it  is  said  that  an  exception  to  this  rule  of  the  presumption 
of  innocence  (which  courts  have  not  always  been  particular  to  no- 
tice), seems  to  have  been  recognized  in  the  case  of  negotiable 
paper,  it  having  been  held  that  the  party  producing  and  claim- 
ing under  the  paper  is  bound  to  examine  every  apparent  and  ma- 
terial alteration,  the  operation  of  which  would  be  in  his  favor.  ^ 
In  some  of  the  States  the  rule  of  the  common  law  requiring  proof 
of  the  execution  of  written  instruments  Avhere  the  instrument 
has  been  declared  on  has  been  changed  by  statute,  and  the  party 
declaring  upon  the  instrument  is  not  required  to  prove  its  execu- 
tion unless  its  genuineness  is  denied  on  oath,  and  where  no  oath 
has  been  made  denying  the  genuineness  of  the  signature  the  pre- 
sumption that  the  instrument  has  been  altered  since  its  execution 
is  destroyed.  It  is  for  the  court  to  determine  whether  the  alter- 
ation apparent  upon  the  face  of  the  instrument  is  so  far  ac- 
counted for  as  to  permit  the  instrument  to  be  read  in  evidence 
and  submitted  to  the  jury,  wlio  are  tlie  ultimate  judges  of  the 
facts. ^  The  effect  of  the  alteration  of  an  instrument  in  a  mate- 
rial part  is  to  destroy  the  instrument  and  thereby  render  it  void. 
An  immaterial  alteration,  however,  of  an  instrument  which  does 
not  affect  its  legality,  does  not  destroy  the  instrument.  A  distinc- 
tion is  taken  between  the  alteration  and  spoliation  of  an  instru- 
ment as  to  the  legal  consequences.  An  alteration  may  be  defined 
to  be  an  act  done  in  changing  the  instrument  by  which  its  mean- 
ing or  language  is  altered  so  as  to  change  its  legal  effect.  If  what 
is  written  on  or  erased  from  the  instrument  has  no  tendency  to 
produce  this  result  the  instrument  is  not  rendered  void.  Tlie  al- 
teration of  an  instrument  by  a  stranger  without  the  knowledge 
or  consent  of  the  party  interested  is  a  mere  spoliation,  and  does 
not  change  its  legal  operations  so  long  as  the  original  instrument 
is  traceable.  If,  by  the  wrongful  act  of  a  third  person,  a  mere 
stranger,  the  instrument  is  mutilated  or  defaced  so  that  its  iden- 
tity is  gone,  the  law  regards  the  alteration  so  far  as  the  rights  of 


^Taylor  v.  Moseley,  6  C.  &  P.  273;  Walters  v.  Short,  5  Gilm.  252. 
^Tilton  V.  The  Cinion  Ins.  Co.  7  Bar.  5G4;   Ross  v.  Gould,  5  Greenl.  204. 


352 


ECCLESIASTICAL  LAW. 


the  parties  are  concerned  as  an  accident,  and  nnder  such  cir- 
cumstances, secondary  evidence  is  admissible  to  prove  the  char- 
acter of  the  instrument  before  the  aheration  was  made.^ 

Alterations  made  by  strangers  are  supposed,  in  contemplation 
of  law,  to  be  made  without  the  consent  of  tiie  party,  and  the 
burthen  is  upon  the  party  alleging  the  alteration  and  seeking  to 
avoid  the  instrument  to  show  consent.  Where  an  instrument  has 
been  executed  in  blank,  and  delivered  to  a  third  party  or  to  the 
opposite  pai-ty,  and  the  blank  has  been  filled  by  the  party  to 
whom  the  instrument  Avas  delivered  in  accordance  with  the  in- 
tention of  the  party,  the  instrument  has  been  held  valid.     A  dis- 


^  The  ancient  doctrine,  that  an  alteration  or  spohation  of  a  deed  by  a  stranger, 
or  by  accident  or  mistake,  without  the  privity  or  consent  of  the  party  interested, 
destroys  it,  has  been  materially  modified,  if  not  substantially  exploded,  by  modern 
decisions.  Henfree  v.  Bromley,  (i  East,  :509  ;  Master  v.  Miller,  4  T.  R.  339,  per 
Buller,  J. ;  3  T. R.  1 51 ,  15:^,  note.  The  second  resolu-tion  in  Piggot's  case  (II  Coke, 
27)  is,  "  That  when  any  deed  is  altered  in  a  point  material  by  the  plaintiff  himself 
or  by  any  stranger  without  the  privity  of  the  obligee,  be  it  by  interlineation,  addition, 
erasion,  or  by  drawing  a  pen  through  a  line  or  through  the  midst  of  any  material 
word,  the  deed  thereby  becomes  void.''  In  Wiielpdale's  case  (5  Coke,  119)  it  is 
said,  "That  in  all  cases  where  the  bond  was  once  tlie  deed  of  the  defendant,  and 
afterwards,  before  the  action  was  brought,  becomes  no  deed,  either  by  rasure  or 
addition  or  other  alteration  of  the  deed,  or  by  breaking  off  the  seal,  the  defend- 
ant may  safely  plead  non  est  fac.hnn ;  for  without  question,  at  the  time  of  the 
plea,  which  is  in  the  present  tense,  it  was  not  his  deed."  And  the  case  of  one 
Hawood  is  there  mentioned,  in  which,  in  an  action  of  debt  on  bond,  he  had 
pleaded  non  est  factum,  and  before  the  day  of  appearance  of  the  inquest  (or 
trial),  by  the  negligence  of  the  clerk  in  whose  custody  it  was,  rats  did  eat  the 
label  by  which  the  seal  was  fixed,  the  justices  charged  the  jury  that  if  they  should 
find  that  it  was  the  deed  of  the  defendant  at  the  time  of  plea  pleaded,  they  should 
give  a  special  verdict;  which  was  done,  and  the  plaintiff  recovered.  Dy.  59,  a, 
S.  C.  and  notes;  id.  112,  a.  Lord  Kenyon,  in  liecd  v.  Brookman,  says  tiiat 
which  was  supposed  to  be  the  old  law  was  founded  upon  a  mistake,  and 
that  the  law  of  the  country  has,  in  this  respect,  in  modern  times,  been  better 
adapted  to  general  convenience.  If  a  deed  may  be  rendered  available  to  a  ]iarty 
notwithstanding  its  total  destruction,  upon  what  principle  can  he  be  deprived  of 
the  benefit  of  it  when  it  has  sufl'cred  a  partial  injury  either  from  accident  or  by 
the  act  of  a  stranger  over  which  he  had  no  control?  Lord  Kenyon,  in  Muster 
V.  Miller,  1  T.  R.  329-30,  seems  to  admit  that  an  alteration  in  a  deed  by  acci- 
dent would  not  destroy  it.  In  Henfree  v.  Bromley,  G  East,  309,  Lord  Ellen- 
borough  expressed  a  decided  opinion  on  this  point.  The  question  there  was, 
whether  an  award  was  void  in  consequence  of  an  alteration  made  l)y  the  umpire 
in  the  amount  awarded  after  he  signed  the  award  and  delivered  it  to  his  attorney 
for  the  purpose  of  being  delivered  to  tht,'  parties.     The  alteration  consisted  in 


PRIVATE  WRITINGS.  353 


tinction,  liowever,  luas  been  iniule  by  some  of  the  cases  between 
an  oral  agreement  and  an  instrument  under  seal.  Accordingly, 
it  has  been  held  that  an  instrument  under  seal,  such  as  a  deed,  not 
being  completed  when  delivered  by  the  maker,  but  filled  up  by  a 
stranger  in  the  absence  of  the;  party  who  executed  it,  and  not 
authorized  by  an  instrument  under  seal,  was  inoperative  and 
void.  This  distinction,  however,  is  not  always  observed.  A 
poAver  of  attorney  under  seal  to  transfer  stock,  bail  bonds,  appeal 
bonds,  and  the  like  instruments,  have  been  held  good  though 
executed  in  blank  and  afterwards  filled  up  by  parol  authority.^ 
Yet  it  has  been  held  that  such  blank  can  not  be  filled  up  so  as  to 


running  his  pen  through  the  £57,  the  amount  originally  awarded,  and  inserting 
the  sum  of  £GG,  leaving  the  £57,  however,  still  legible.  It  was  contended  by 
Erskine  and  Pooley,  that  the  alteration  in  the  award  vitiated  it  altogether;  and 
they  referred  to  the  second  resolution  in  Piggot's  case  (11  Coke,  27)  in  support 
of  their  argument.  But  Lord  Ellenborough,  for  the  whole  Court,  said:  "I  con- 
sider the  alteration  of  the  award  by  the  umpire,  after  his  authority  was  at  an  end 
the  same  as  if  it  had  been  made  by  a  stranger  or  mere  spoliator,  and  I  still  read 
it,  with  the  eyes  of  the  law,  as  if  it  were  an  award  for  £57 — such  as  it  originally 
was.  If  the  alteration  had  been  made  by  a  person  who  was  interested  in  the 
award,  I  should  have  felt  myself  pressed  by  the  objection;  but  I  can  no  more 
consider  this  as  avoiding  the  instrument  than  if  it  had  been  obliterated  or  can- 
celed by  accident."     Hees  v.  Overbaiigh,  G  Cowen,  748. 

^  The  plaintiff,  together  with  a  surety,  executed  a  bond  and  delivered  it  to 
Robinson  as  their  agent,  with  verbal  directions  and  authority  to  submit  it  to  Mr. 
Helme,  and  if  he  thought  any  alteration  or  addition  necessary,  to  make  them. 
It  falls  within  the  principle  of  the  cases  in  which  it  has  been  held,  that  a  bond 
executed  in  blank  as  to  a  material  part,  with  parol  authority  to  fill  up  the  blank 
and  deliver  it,  is  good.  In  Texira  v.  Ecans,  1  Anst.  228,  cited  by  Wilson,  J.,  a 
bond  executed  in  blank  as  to  obligee  and  amount,  was  delivered  to  an  agent  to 
raise  money  upon,  with  parol  authority  to  fill  up  the  blanks  with  the  name  of  the 
lender  and  the  sum,  and  was  held  good.  So  in  ex  parte  Decker,  6  Cowen  GO  ; 
ex  parte  Kerwin,  Cowen,  118,  appeal  bonds  executed  in  blank,  with  parol  au- 
thority to  an  agent  to  fill  them  up  and  deliver  the  bonds,  were  held  valid.  Knapp 
V.  Malthy,  13  Wend.  434. 

The  real  and  only  point  before  us,  then,  is  whether  the  filling  up  of  the  blank 
left  in  the  bill  of  sale  for  the  certificate  of  registry  rendered  the  bill  of  sale  void. 
The  jury  have  found  that  the  blank  was  filled  up  by  the  consent  of  Evans,  the 
vendor.  The  testimony  upon  which  that  finding  was  grounded  is  not  stated  in 
tlie  case ;  we  are,  therefore,  to  take  it  for  granted  that  that  fact  is  not  contro- 
verted, and  are,  of  course,  relieved  from  any  inquiry  how  far  such  an  act  could 
have  been  permitted  without  the  consent  of  the  vendor.  Neither  is  it  requisite 
to  examine  whether  the  filling  up  of  this  blank  made  a  material  alteration  in 
the  deed,  because  I  think  it  can  be  maintained  that  a  deed  may  be  altered  in  a 


354  ECCLESIASTICAL  LAW. 

give  to  the  writing  a  legal  effect  contrary  to  the  intention  of  the 
parties.  In  this  respect  it  is  different  from  an  indorsement  in 
blank  upon  a  negotiable  note,  or  a  blank  signature  or  accept- 
ance which  is  so  made  as  to  enable  the  person  in  whose  hands  it 
is  placed  to  impose  upon  the  community  by  an  apparent  right  to 
the  instrument  written  over  the  signature  as  the  legal  owner  of  a 
negotiable  security  where  such  negotiable  instrument  has  been 
transferred  before  due  to  a  bona  fide  holder.  An  instrument  at- 
tested by  subscribing  witnesses  must  be  proved  by  such  witnesses, 
or  one  of  them,  if  within  the  jurisdiction  of  the  court.  Various 
reasons  are  assigned  for  this  rule,  the  principal  of  which  is,  that 
the  witnesses'  attestation  constitutes  a  part  of  the  res  gesice,  and 
if  they  are  called  in  addition  to  the  proof  of  the  execution  of  the 
instrument,  they  may  be  able  to  state  the  time  of  the  execution 
and  other  material  facts  attending  the  transaction  which  may  not 
be  within  the  knowledge  of  the  other  witnesses,  and  for  the  fur- 
ther reason  that  such  witnesses  are  the  persons  selected  and 
agreed  on  by  the  parties  as  the  witnesses  of  their  act  in  making 
the  instrument,  with  the  attending  circumstances.^      Even  proof 


material  part  with  the  consent  of  both  parties.  It  is  difficult  to  perceive  any 
objection  to  this,  since  the  temptations  to  abuse  and  fraud,  which  would  be  felt 
if  such  alteration  were  allowed  by  one  party  only,  do  not  exist.  In  2  Roll.  Abi*. 
29,  pi.  5,  it  is,  however,  stated  that  if  a  material  alteration  be  made  in  a  deed  by 
the  obligor,  with  the  consent  of  the  obligee,  it  is  still  void;  and  for  this,  Xao- 
mau's  case  in  the  C.  P.  is  cited.  But  when  this  case  was  cited  in  Master  v. 
Miller,  4  Terra  R.  .322,  Lord  Kenyon  said  that  there  had  been  contrary  decisions 
since;  and  in  Markham  v.  Gnmaston,  as  reported  in  Moore,  547,  a  subsequent 
and  contrary  decision  is  stated  to  have  been  made  in  K.  B.  A  bond  was  given 
containing  the  recital  of  a  former  bond  or  recognizance,  against  which  the  one 
in  question  was  taken  by  way  of  indemnity.  The  former  bond  was  recited  with 
a  blank  for  the  Christian  name  and  addition  of  the  obligee,  and  this  blank  was 
afterwards  filled  up.  In  a  suit  upon  the  bond  of  indemnity,  this  matter  was 
specially  pleaded,  and  the  plaintiff  replied  that  the  blank  was  filled  up  with  the 
consent  of  tlie  obligor,  and  upon  demurrer  judgment  was  given  for  the  plaintiflf. 
That  is  a  case  very  analogous,  ami,  indeed,  in  point;  for  it  will  be  admitted  tha 
the  blanks  in  that  ease  were  material.    Woolley  v.  Constant,  4  John.  58. 

^  The  question  here  is,  whether  proof  of  the  acknowledgment  by  the  defend- 
ants, out  of  court  and  before  some  private  per.son,  that  they  had  executed  the 
bond,  is  good  proof  of  its  execution  npon  the  issue  of  non  est  factum,  without 
producing  the  subscribing  witness  or  in  any  manner  accounting  for  his  absence. 
Here  we  are  certainly  concluded  by  an  ancient  and  uniform  rule,  that  when  a 
defendant  has  not  acknowledged  his  deed  before  a  competent  public  officer,  or 


PRIVATE  WRITINGS.  355 


of  the  confession  or  acknowledgment  of  the  party  tliat  he  ex- 
ecuted the  instrument,  will  not  be  received  as  a  substitute  for  the 
testimony  of  the  subscribing  witness.  Lord  Kenyon  refused  to 
receive  the  acknowledgment  of  the  person  who  executed  the 
deed  though  made  in  his  presence  in  court,  and  on  trial  where 
the  deed  was  to  be  used.^  To  what  extent  the  law  changing  the 
rule  of  the  common  law  and  thereby  rendering  parties  competent 
as  witnesses  will  change  or  modify  the  rule  in  regard  to  subscrib- 
ing witnesses  remains  yet  to  be  determined.  We  can  perceive 
no  reason  wdiy  a  party  to  the  instrument  would  not  be  as  competent 
to  prove  the  execution  of  the  instrument,  with  all  its  attendant  cir- 
cumstances, as  well  as  a  subscribing  witness.  The  rule  grew  up 
out  of  the  necessities  of  the  case  when  parties  to  the  record,  or 
parties  in  interest,  were  incompetent  as  Avitnesses.  Opposed, 
however,  to  this  suggestion,  are  two  important  cases,  in  which 
it  was  held  that  if  the  execution  of  a  deed  can  not  be  ])roved  by 
one  of  the  parties  to  it,  the  subscribing  witness  must  be  called.^ 
A  subscribing  Avitness  is  one  Avho  was  present  Avlien  the  in- 
strument was  executed,  and  who,  at  tlie  time,  subscribed  his 
name  as  a  witness  of  the  execution.  The  witness  need  not  be 
present  at  the  moment  of  tiie  execution ;  if  he  is  called  in  by  the 
parties  immediately  afterwards,  and  informed  that  it  is  their 
deed  or  agreement,  and  requested  to  subscribe    his  name  as  a 

has  not  expressly  agreed  to  admit  it  in  evidence  upon  the  trial,  but  has  put  him- 
self upon  his  plea  of  non  est  Jhctxtm,  the  plaintiff"  must  produce  the  subscribing 
witnesses  and  give  the  defendant  the  benefit  of  an  investigation  of  the  circum- 
stances attending  the  execution  of  the  deed.     Fox  v.  Heil,  B  John.  477,  478. 

See,  also,  Cussans  v.  Skinnej;  II  M.  &  W.  168;  Hollenhack  v.  Fleming, 
6  Hill,  N.  Y.  803;  Ahhott  v.  Plumhe,  1  Doug.  216;  7  T.  R.  267;  2  East,  187; 
Eex  V.  Harrington,  4  M.  &  S.  353;   Henry  v.  Bishop,  2  Wend.  575. 

^  Johnson  v.  Mason,  1  Esp.  R.  89. 

^  The  defendant  was  not  entitled  to  prove  his  deed  by  the  grantee  without 
accounting  for  the  subscribing  witness.  The  grantee  had  the  strongest  interest 
in  the  question  put,  and  it  showed  the  danger  of  departing  from  the  general 
rule  as  to  the  proof  of  deeds.      Willonghby  v.  Carleion,  t)  John.  137. 

Lord  Ellenborough  said,  in  the  case  of  Call  v.  Dunning,  4  East,  54,  that  "  this 
case  falls  within  the  common  rule.  The  answer  of  the  defendant  in  Chancery, 
admitting  the  execution  of  his  bond,  to  which  there  was  a  subscribing  witness, 
can  not  be  more  than  secondary  evidence;  and  I  did  not  reject  it  as  being  inad- 
missible in  any  event,  but  because  the  plaintiff  had  not  laid  the  foundation  for 
letting  it  in  by  showing  that  he  had  made  inquiry  after  the  subscribing  witnesa 
and  had  not  been  able,  by  due  diligence,  to  procure  any  account  of  him." 


356  ECCLESIASTICAL  LAW. 

witness,  that  will  be  enough;  the  execution  by  the  parties  and 
bj  the  subscribing  witness  are  then  considered  as  a  part  of  the 
same  transaction.^  But  if  the  witness  were  present  at  the  execu- 
tion, and  if  he  did  not  subscribe  the  instrument  at  the  time,  but 
did  it  afterwards,  -without  the  request  of  the  parties,  he  is  not  an 
attesting  witness,  and  the  instrument  may  be  proved  the  same  as 
though  there  was  no  attesting  witness ;  so,  also,  when  his  name 
is  signed  by  another  and  not  by  himself. 

To  the  rule  requiring  instruments  attested  by  subscribing 
witnesses  to  be  proved  by  the  subscribing  witnesses,  there  are 
numerous  exceptions  that  are  as  firmly  established  as  the  rule 
itself;  the  first  of  which  is,  that  where  the  instrument  is  not 
directly  in  issue,  but  comes  in  incidentally  in  the  course  of  the 
trial  or  investigation,  the  subscribing  witness  need  not  be  called, 
but  the  execution  of  the  instrument  may  be  proved  by  any  com- 
petent witness.  So  where  the  instrument  attested  is  an  ofiicial 
bond  required  by  law  to  be  taken  by  a  public  officer  for  the 
benefit  of  all  persons  concerned  and  to  be  preserved  for  their 
protection  and  benefit,  and  the  due  execution  of  which  must  be 
passed  upon  and  approved  by  such  of^cev,  under  such  circum- 
stances the  instrument  is  said  to  be  of  such  a  high  character  of 
authenticity  that  2)rima  facie,  it  proves  itself.^ 


^  Parke  v.  Means,  3  Esp.  R.  171;  2  Bos  &  Pull,  217,  S.  C;  Parnell  v. 
Blacketi,  1  Esp.  R.  97 ;  Lesher  v.  Levan,  2  Dall.  96  ;  GreUier  v.  Neale,  Peake's 
Cas.  146;  Munns  v.  Dupont,  3  Wash.  C.  C.  Rep.  31,  42;  Wright  v.  Wakejield, 
4  Taunt.  32n. 

^  In  general,  it  may  be  remarked  that  in  all  the  United  States  provision  is 
made  for  the  re<>;istration  and  enrollment  of  deeds  of  conveyance  of  lands,  and 
that  prior  to  such  registration  the  deed  must  be  acknowledged  by  the  grantor  be- 
fore the  designated  magistrate  ;  and  in  case  of  the  death  or  refu.sal  of  the  grantor, 
and  in  some  other  enumerated  cases,  the  deed  must  be  proved  by  witnesses  either 
before  a  magistrate  or  in  a  court  of  record.  But  generally  speaking,  sucli  ac- 
knowledgment is  merely  designed  to  entitle  the  deed  to  registration,  and  regis- 
tration is,  in  most  States,  not  essential  to  passing  the  title,  but  is  only  intended 
to  give  notoriety  to  the  conveyance  as  a  substitute  for  livery  of  seizin.  And 
such  acknowledgment  is  not  generally  received  as  prima  facie  evidence  of  the 
execution  of  the  deed,  unless  by  force  of  some  statute  or  immemorial  usage 
rendering  it  so;  but  the  grantor  or  party  to  be  affected  by  the  instrument  may 
still  controvert  its  genuineness  and  validity.  But  where  the  deed  falls  under  one 
of  the  exceptions,  and  has  been  proved  per  testes,  there  seem  to  be  good  reasons 
for  proving  this  probate,  duly  authenticated,  as  sufficient  prima  facie  proof  of 


PRIVATE  WRITINGS.  357 


A  second  exception  to  this  rule  is  where  the  witness  from  pliysi- 
cal  or  legal  obstacles  can  not  be  produced.  If  such  witness  is  dead, 
or  on  diligent  inquiry  can  not  be  found,  or  is  out  of  the  jurisdiction 
of  the  court,  or  is  a  fictitious  person,  or  the  instrument  is  lost  and 
the  name  of  the  subscribing  witness  is  unknown,  or  if  the  witness 
is  infamous,  or  if  the  witness  was  incapacitated  from  being  an  at- 
testing witness  at  the  time  of  signing  the  instrument,  which  fact  was 
unknown  to  the  party,  or  if  the  party  pending  the  cause  agrees 
with  tlie  adverse  party  to  admit  the  execution  of  the  instrument, 
and  thus  dispense  with  the  necessity  of  calling  such  witness,  or 
if  the  witness  being  called  denies  the  execution  of  the  instru- 
ment, or  can  not  remember  its  execution,  it  may  be  established 
in  all  such  cases  by  other  competent  evidence.     It  is  said  that  if 

the  execution ;  and  such  is  understood  to  have  been  the  course  of  practice,  and 
still  is,  as  settled  by  the  statutes  of  man}'  of  tlie  United  States. 

The  certificates  of  acknowledgment  were,  we  think,  pi'operly  received  in  evi- 
dence. The  objections  to  them,  if  all  allowed,  would  destroy  almost  entirely  the 
utility  of  the  statutes  which  declare  a  probate  or  certificate  of  acknowledgment 
indorsed  by  certain  officers  upon  a  deed,  to  be  prima  facie  evidence  of  its  execu- 
tion. If  their  official  character,  their  signatures,  and  that  they  acted  within  their 
territorial  jurisdiction  must  be  shown  by  extrinsic  evidence,  the  party  may  as 
well,  and  in  general  perhaps  with  more  convenience  to  himself,  procure  the  com- 
mon law  proof.  The  practice  is  to  take  a  certificate  which  appears  on  its  face 
to  be  in  conformity  with  the  statutes,  as  proof  of  its  own  genuineness;  it  need 
only  be  produced.  Tiiere  is  no  need  of  extrinsic  proof,  such  as  showing  by 
whom  it  was  made,  any  more  than  of  a  notary's  certificate  when  received  under 
the  commercial  or  civil  law  (Chitty  on  Bills,  Am.  Ed.  18?>9,  p.  G-12,  a;  2  Dom. 
tit.  1,  §  1,  pi.  29),  or  a  clerk's  certified  rule  of  the  court  in  which  the  cause  is 
pending.  Cowen  &  Hill's  1  Pill.  Ev.  ;?88.  Accordingly,  where  the  certificate 
describes  the  proper  officer  acting  in  the  proper  place,  it  is  taken  as  proof  both 
of  his  character  and  local  jurisdiction.  Ehoades's  Lessee  v.  Seliii,  4  Wash.  C.  C. 
R.  718;  Willink's  Lessee  v.  Miles,  1  Pet.  C.  C.  R.  429;  Morris  v.  Wadstcorih, 
17  Wendell,  lO:?,  112,  113.  He  is  like  an  officer  authorized  to  take  testimony 
de  bene  esse  under  various  statutes.  Buggies  v.  Bucknor,  1  Paine's  C.  C.  R.  358, 
3f)2.  Thompson,  J.,  there  said,  prima  facie  the  officer  is  to  be  presumed  de 
facto  and  de  jure,  such  as  he  is  described  to  be.  Thurman  v.  Cameron,  24 
Wendell,  90. 

The  execution  of  the  deed  from  Pratt  to  Johnson  which  was  admitted  in 
evidence  was  sufficiently  proved  by  the  acknowledgment  made  before  the  justice 
of  the  peace,  and  the  certificates  of  the  recorder  of  the  county.  The  certificate 
is  full,  certain,  and  direct.  The  additional  proof  contained  in  the  deposition  of 
Harlin,  of  the  handwriting  of  Pratt,  and  the  subscribing  witness,  Roberts,  is 
only  cumulative  and  fortifies  the  certificate  of  acknowledgment  of  the  justice. 
M' Connel  v.  Johnson,  2  Scam.  528. 

24 


358  ECCLESIASTICAL  LAW. 


the  witness  becomes  blind,  that  does  not  excuse  tlie  party  from 
calling  him  ;  for  he  may  be  able  to  testify  to  the  circumstances 
connected  with  the  execution  of  the  instrument.  Where  a  party 
interested  is  used  as  an  attesting  witness,  and  continues  in  inter- 
est, the  party  using  him  not  knowing  the  fact,  the  attestation 
would  be  treated  as  a  nullity.'  A  third  exception  is  allowed,  as 
we  have  previously  seen,  when  the  instrument  on  notice  is  pro- 
duced by  the  adverse  party,  the  party  producing  it  claiming  an 
interest  in  such  instrument.  Thus,  it  was  held  that  if  the  party 
producing  the  instrument  on  notice  is  one  of  the  parties  to  the 
instrument,  the  custody  of  the  paper  affords  high  presumptive 
evidence  that  he  holds  it  as  a  muniment,  and  prima  facie  it  is 
sufficient  proof  of  the  execution.  But  the  mere  possession  of  an 
instrument  does  not  dispense  with  the  necessity  which  lies  on  the 
party  calling  for  it  of  producing  the  attesting  witness.  Thus,  in 
the  case  of  an  heir  at  law  being  in  the  possession  of  a  will,  and 
the  devisee  brings  ejectment,  and  calls  upon  the  heir  to  produce 
the  will,  it  would  be  hard  if  the  heir  claiming  against  the  will 
should  be  affected  by  its  production,  so  as  to  dispense  with  proof 
of  its  execution.  ^'  The  result  appears  to  be,"  says  Mr.  Phillips, 
in  his  work  on  Evidence,  'Uhat  where  a  party  in  pursuance  of 
a  notice  produces  an  instrument  to  which  he  is  a  pai'ty,  and 
under  which  he  claims  a  beneficial  estate,  it  will  not  be  necessary 
that  the  other  party,  a  stranger  to  the  instrument,  should  call  an 


^  Chief-Justice  Shaw  on  this  point  says,  in  delivering  the  opinion  of  the  Court 
in  the  ease  of  Amherst  Bank  v.  Root  et  al.,  "  It  appears  from  the  report  that 
Smith  was  a  stockholder  at  the  time  of  the  attestation,  and  so  continued  till  the 
time  of  his  decease.  It  is,  therefore,  obvious  that  if  Smith  himself  were  living, 
and  within  the  jurisdiction  of  the  Court  he  could  not  be  examined  as  a  witness, 
being  incompetent  on  the  ground  of  interest.  (1  Starkie's  Ev.  .3;?7  ;  Swire  v.  BeU, 
5  Term  Rep.  ;571.)  We  think  it  follows  as  a  necessary  consequence,  that  proof 
of  his  handwriting  is  not  admissible.  Such  evidence  is  in  its  nature  secondary, 
being  admissible  only  when  the  attesting  witness  is  dead,  or  without  the  juris- 
diction of  the  Court,  or  when  he  has  l)ecome  interested  after  the  attestation  by 
act  of  the  law.  In  saying  tliat  if  Smitli  had  lived  he  could  not  have  been  called 
as  a  witness,  it  is  proper  to  qualify  the  remark  by  adding  that  such  would  have 
been  the  case  if  his  interest  had  continued.  But  he  might  have  been  qualified 
as  a  witness  by  an  actual  alienation  of  his  shares,  so  that  he  had  ceased  to  be 
interested  at  the  time  of  the  trial.  But,  even  then  he  would  not  be  called  to 
prove  the  fact  of  attestation  by  himself,  but  the  fact  of  execution  by  the  parties." 
See,  also,  Uoneywood  v.  Peacock,  3  Camp.  196. 


{ 


PRIVATE  WRITINGS.  359 


attesting  witness;  but  that  in  other  cases  the  execution  ought  to 
be  regularly  proved  by  the  party  who  offers  the  instrument  as 
part  of  his  evidence  in  the  case.  The  question  often  arises,  what 
degree  of  diligence  is  necessary  to  be  made  in  search  of  the  sub- 
scribing witnesses,  and  whether  the  return  of  an  officer  is  suffi- 
cient when  made  upon  a  subpoena  irrinia  facie  to  admit  other 
evidence  in  proof  of  the  execution  uf  tlie  instrument  ?'  The  rule 
is,  that  the  same  degree  of  diligence  in  searcli  for  the  subscrib- 
ing witness  is  required  as  is  necessary  in  laying  the  foundation 
for  the  introduction  of  secondary  evidence  of  the  contents  of  a 
lost  paper.  There  should  be  a  strict  diligence  and  satisfactory 
search.  The  subscribing  witness,  if  his  residence  is  known, 
should  be  inquired  after  at  such  place  of  residence,  and  at  all 
other  places  where  there  may  be  a  reasonable  expectation  that 
he  may  be  found;  and  inquiry  should  be  made  of  his  relations,  if 
he  has  any,  and  of  others  Avho  may  be  supposed  to  be  acquainted 
with  him,  so  as  to  be  able  to  afford  any  information  upon  such 
inquiry  being  made ;  answers  given  in  reply  being  part  of  the  res 
gestce  may  be  proved.  When  the  execution  of  an  instrument 
attested  may  be  proved  by  other  than  the  attending  witnesses,  it 
will  be  sufficient  to  prove  the  attestation  of  one  of  the  witnesses, 
or  in  some  of  the  States  proof  of  the  handwriting  of  the  parties 
is  required  in  addition  to  that  of  the  subscribing  witness,  but 
upon  this  point  neither  the  rule  nor  the  practice  is  uniform." 
Spencer,  C.  J.,  in  delivering  the  opinion  of  the  Court  in  the  case 
of  Jackson  v.  Le  Grange,^  says,  "I  am  of  the  opinion  that  the 
will  was  not  well  proved.  Quackenbush  merely  proved  his  own 
signature  as  a  witness  to  the  execution  of  the  will.  He  had  lost 
all  recollection  of  the  facts  and  circumstances  attending  its  exe- 
cution. He  never  knew  the  testator,  and  lie  had  not  to  his  rec- 
ollection seen  him  before  that  time.  I  consider  it  well  settled, 
that  on  a  trial  at  law,  Avhere  the  execution  of  a  will  comes  in 
question,  the  party  supporting  or  claiming  under  it  is  not  under 
the  necessity  of  calling  more  than  one  of  the  subscribing  wit- 
nesses if  he  can  prove  the  execution  as  that  the  testator  signed 
it  in  the  presence  of  the  witnesses,  or  acknowledged  his  signing 
to  them,  or  to  each  of  them,  and  that  the  witnesses  subscribed  it 

1 19  John.  388. 


360  ECCLESIASTICAL  LAW. 

in  his  presence.  But  if  the  witness  can  not  prove  these  requi- 
sites, tlie  other  witnesses  ought  to  be  called.  If  they  are  dead, 
their  handwriting  and  the  handwriting  of  the  testator  ought  to 
be  proved;  and  then  it  becomes  a  question -of  fact  whether,  under 
all  the  circumstances,  it  is  to  be  presumed  that  all  the  requisitions 
of  the  statute  have  been  observed.  The  death  and  signature  of 
Jeremiah  Lansing  were  proved,  but  it  appeared  that  Matthew 
Wendell,  the  other  subscribing  witness,  was  alive  and  within  the 
jurisdiction  of  the  court.  He  ought  to  have  been  called,  inas- 
much as  Quackenbush  did  not  prove  the  facts  essentially  neces- 
sary to  the  valid  execution  of  the  will.  If  Wendell  had  been 
called  he  might  have  proved  or  disproved  these  facts.  If  his 
recollection  should  also  have  failed  him,  still,  if  he  could  have 
proved  his  signature,  then,  on  proving  the  signature  of  the  tes- 
tator, I  should  be  of  the  opinion  that  the  will  had  been  suffi- 
ciently proved  to  entitle  it  to  be  read.  The  law  does  not  require 
impossibilities;  and,  therefore,  where  the  will  has  been  executed 
a  long  time  before  the  trial,  it  is  not,  ordinarily,  to  be  expected 
that  the  witnesses  will  be  able  to  remember  all  the  material  facts. 
In  this  respect  a  will  may  be  compared  to  a  deed,  the  execution 
of  Avhich  is  denied.  If  the  subscribing  witnesses  prove  their  sig- 
natures, though  they  may  not  be  able  to  recollect  the  delivery, 
yet,  if  they  declare  that  they  never  subscribed  as  witnesses  with- 
out a  due  execution  of  a  deed  by  the  grantor  or  obligor,  such 
proof  would  be  sufficient.  So,  also,  if  the  subscribing  witnesses 
to  a  will  are  dead,  the  proof  of  their  signatures  and  that  of  the 
testator  is  sufficient.  Prima  facie  the  law  will  intend  a  due  exe- 
cution." Mr.  Justice  Story,  in  the  case  of  Patterson  v.  Winn,  ^ 
says,  ^' There  appears  to  have  been  a  very  diligent  search  in  all 
the  proper  places,  and  among  all  the  proper  persons  connected 
with  the  transaction  to  obtain  information  of  the  existence  or  loss 
of  the  papers.  The  affidavit  of  Patterson  explicitly  denied  any 
knowledge  where  they  were ;  and  declared  that  they  were  not  in 
his  possession,  power,  or  custody.  We  think  that  according  to 
the  rules  of  evidence  at  the  common  law,  this  preliminary  proof 
afforded  a  sufficient  presumption  of  the  destruction  or  loss  of  the 
originals  to  let  in  secondary  evidence;  and  that  it  was  not  com- 

1  9  Curtis,  314. 


PRIVATE  WRITINGS.  3GI 


petent  for  the  Court  to  exclude  it  by  its  own  rule.  However  con- 
venient the  rule  might  be  to  regulate  tlie  general  practice  of  the 
courts,  we  think  it  could  not  control  the  rights  of  the  parties  in 
matters  of  evidence  admissible  by  the  general  principles  of  law." 
Mr.  Chief-Justice  Kent,  in  delivering  the  opinion  of  the  Court, 
in  the  case  of  Jackson  ex  dem.  Livingstone  et  al.  v.  Burton, '  said  : 
"  The  proof  of  the  deed  was  prima  facie  sufficient.  It  was  a 
deed  of  forty-four  years'  standing,  and  there  was  proof  of  the 
handwriting  of  one  of  the  subscribing  "witnesses  and  that  he  was 
dead.  If  there  be  two  or  more  subscribing  witnesses  to  a  deed, 
the  calling  of  one  to  prove  the  deed  has  always  been  held  suffi- 
cient 5  and  when  the  witnesses  can  not  be  produced  there  is  no 
fixed  rule  requiring  proof  to  the  hand  of  all  the  absent  witnesses. 
The  only  point  in  the  case  is  that  the  absence  of  Murray,  the 
other  subscribing  witness,  was  not  accounted  for;  but  the  pre- 
sumption that  he  was  not  to  be  found,  and  that  he  was  either  dead 
or  beyond  sea,  was  under  the  circumstances  very  strange,  and 
sufficient  to  let  the  proof  go  to  the  jury."  Mr.  Justice  Suther- 
land, in  delivering  the  opinion  of  the  Couit  in  the  case  of  Jack- 
son V.  Gager,^  said:  ^'The  general  rule  is,  that  Avliere  tliere  are 
several  witnesses  to  a  deed,  it  may  be  proven  by  one  of  them. 
If  none  of  them  are  in  being,  or  from  any  other  sufficient  cause 
can  not  be  produced,  proof  of  the  signature  of  one  of  them  is 
sufficient.'  But  before  evidence  can  be  given  of  the  handwrit- 
ing of  either  of  the  witnesses,  some  account  must  be  given  of  all 
of  them  ;  as  that  they  are  dead  or  beyond  the  jurisdiction  of  the 
court ;  or  that  upon  diligent  inquiry  nothing  can  be  heard  of 
them;*  thougli  I  admit  that  the  rule  has  been,  inider  peculiar  cir- 
cumstances, somewhat  relaxed,  as  in  case  of  an  ancient  deed. 
In  Wallis  V.  Delancy^  the  action  was  brought  on  a  bond  executed 
at  New  York,  and  attested  by  two  witnesses,  Rivington  and 
Moreton.  After  the  handwriting  of  the  obligor  and  of  Riving- 
ton had  been  proved,  Lord  Kenyon  held  the  proof  deficient, 
unless  some  account  was  given  of  the  other  witness.  It  was 
then  proved  that  there  had  been  a  man  of  the  name  of  More- 
ton,   a   clerk   in   the  store  of   Rivington,   at   New  York.     Lord 

^  11  John.  63.  25  Coweii,  385.  ^  1  Plilll.  Ev.  169. 

*  7  T.  R.  261,  262.  ^  7  x.  R.  262,  note  c. 


362  ECCLESIASTICAL  LAW. 

Kenyon  held  this  sufficient,  it  being  a  foreign  transaction.  In 
CmiJiffe  V,  Lefton,^  proof  of  the  handwriting  of  one  of  the  wit- 
nesses was  admitted  after  it  had  been  proved  that,  upon  diligent 
inquiry,  no  trace  of  the  other  witness  could  be  obtained.  But 
without  such  evidence  the  proof  Avould  clearly  have  been  held 
defective.''  Mr.  Justice  Nelson,  in  delivering  the  opinion  of  the 
Court  in  the  case  of  Felletreau  v.  JacJiSon,  ^  lays  down  a  rule  that 
is  very  concise  and  yet  comprehensive,  and  is  supported  and 
borne  out  by  the  strictest  rules  of  evidence;  he  says:  "Where 
there  is  no  witness  to  the  deed,  or  if  there  is,  and  he  denies  hav- 
ing any  knowledge  of  the  execution,  or  the  name  of  the  sub- 
scribing witness  is  fictitious,  or  the  witness  is  interested,  or  of 
infamous  character,  or  if  dead  or  out  of  the  jurisdiction  of  the 
court,  and  after  diligent  inquiry  no  proof  of  his  handwriting  can 
be  made,  or  if  upon  like  inquiry  nothing  can  be  heard  of  the  sub- 
scribing witness,  so  that  he  can  neither  be  produced  nor  his  hand- 
writing proved;  in  all  these  cases  the  execution  of  the  deed  may 
be  proved  by  proving  the  handwriting  of  the  party,  or  by  his 
admission  that  he  executed  it.  And  all  these  qualifications  of 
the  general  principle  as  to  the  proof  of  the  execution  of  instru- 
ments with  subscribing  witnesses,  are  in  strict  observance  of  an- 
other rule  of  evidence,  namely,  that  the  best  of  which  the  nature 
and  state  of  the  case  will  admit  must  be  produced.^  There  was 
in  this  case,  I  am  of  opinion,  sufficient  diligence  shown  in  the 
inquiry  after  the  subscribing  witness  to  let  in  the  secondary  evi- 
dence; that  is,  proof  of  her  handwriting;  but  it  fell  short  of  what 
the  Court  would  have  required,  in  order  to  justify  an  entire  disre- 
gard of  the  fact  that  there  was  a  subscribing  witness  to  the  in- 
strument in  the  proof  of  the  execution  of  it.  The  same  diligence 
should  be  exacted  in  endeavoring  to  prove  the  handwriting  that 
is  required  in  endeavoring  to  find  and  procure  the  personal  attend- 
ance of  the  witness,  at  least  before  the  third  degree  of  evidence 
is  admitted,  to-wit,  the  handwriting  of  the  party.  In  both  these 
cases  it  should  be  satisfiictorily  proved  that  a  reasonable,  honest, 
and  diligent  inquiry  has  been  made,  without  any  evasion  or  de- 


'  2  East,  183.  HI  Wend.  121. 

»Phil.  Ev.  3r,3  n.  a.  5  Esp.  R.  1(5;  note  Peako's  R.  23,  147;  2  East,  183; 
V  T.  R.  2{]{];   1  John.  Dig.  570,  ix ;   9  Cowen,  140. 


PRIVATE  WRITINGS.  363 


sign  to  overlook  the  witness,  or  the  means  of  proving  his  huncl- 
writing."  In  tliose  States  where  proof  of  the  handwiting  of  the 
subscribing  witness  is  alone  required  to  entitle  the  instrument  to 
be  read,  some  accompanying  proof  of  the  identity  of  the  party 
sued,  with  the  person  who  appears  to  have  executed  the  instru- 
ment, is  deemed  requisite.  But  it  seems  that  slight  evidence  of 
identity  will  suffice.^ 


1  Whiteloclc  v.  Musgrove,  1  C.  &  M.  511 ;  Nelson  v.  Whiteall,  1  B.  &  Aid.  19; 
Warren  v.  Anderson,  8  Scott,  384;  Phil.  &  Am.  on  Ev.  GGl  n.  (4).  This  sub- 
ject has  recently  been  reviewed  in  the  cases  of  Sewell  v.  Evans  and  Roden  v. 
Ryde,  4  Ad.  &  El.  N.  S.  626.  In  the  former  case,  which  was  an  action  for  good.s 
sold  against  William  Seal  Evans,  it  was  proved  that  the  goods  had  been  sold  to 
a  person  of  that  name  who  had  been  a  customer,  and  had  written  a  letter  ac- 
knowledging the  receipt  of  the  goods ;  but  there  was  no  other  proof  that  this 
person  was  the  defendant.  In  the  latter  case,  which  was  against  Henry  Ryde  as 
the  acceptor  of  a  bill  of  exchange,  it  appeared  that  a  person  of  that  name  had 
kept  cash  at  the  bank  where  the  bill  was  payable,  and  had  drawn  checks  whic-li  the 
cashier  had  paid.  The  cashier  knew  the  person's  handwriting  by  the  checks,  Mnd 
testified  that  the  acceptance  was  in  the  same  writing ;  but  he  had  not  paid  any 
check  for  some  time,  and  did  not  personally  know  him,  and  there  was  no  other 
proof  of  his  identity  with  the  defendant.  The  Court  in  both  these  cases  held 
that  the  evidence  of  identity  was  prima  facie  sufficient.  In  the  latter  case  the 
learned  judges  gave  their  i-easons  as  follows:  Lord  Denman,  C.  J.,  "The  doubt 
raised  here  has  arisen  out  of  the  case  of  Whitelock  v.  Musgrove  (1  C.  &  M.  511 ; 
S.  C.  8  Tyrwh.  541).  But  there  the  circumstances  were  different;  the  party  to  be 
fixed  with  liability  was  a  marksman,  and  the  facts  of  the  case  made  some  ex- 
planation necessary.  But  where  a  person  in  the  course  of  the  ordinary  transac- 
tions of  life  has  signed  his  name  to  such  an  instrument  as  this,  I  do  not  think 
there  is  an  instance  in  which  evidence  of  identity  has  been  required  except  Jones 
V.  Jones  (9  M.  &  W.  75).  There  the  name  was  proved  to  be  very  common  in  the 
country,  and  I  do  not  say  that  evidence  of  this  kind  may  not  be  rendered  neces- 
sary by  particular  circumstances ;  as,  for  instance,  length  of  time  since  the  name 
was  signed.  But  in  cases  where  no  particular  circumstances  tend  to  raise  a 
question  as  to  the  party  being  the  same,  even  identity  of  name  is  something  from 
which  an  inference  may  be  drawn.  If  the  name  were  only  John  Smith,  which  is 
of  very  frequent  occurrence,  there  might  not  be  much  ground  for  drawing  the 
conclusion.  But  Henry  Thomas  Rydes  are  not  so  numerous;  and  from  that, 
and  from  the  circumstances  generally,  there  is  every  reason  to  believe  that  the 
acceptor  and  the  defendant  are  identical.  The  dictum  of  Bolland,  B.  (3  Tyrwh. 
558),  has  been  already  answered.  Lord  Lyndhurst,  C.  B.,  asks  (3  Tyrwh.  543) 
why  the  onus  of  proving  a  negative  in  these  cases  should  be  thrown  upon  the 
defendant?  The  answer  is,  because  the  proof  is  so  easy.  He  might  come  into 
Court  and  have  the  witness  asked  whether  he  was  the  man.  The  supposition  that 
the  right  man  has  been  sued  is  reasonable  on  account  of  the  danger  a  jiarty 
■would  incur  if  he  served  process  on  the  wrong  party,  for  if  he  did  so  willfully, 


364 


ECCLESIASTICAL  LAW. 


Where  there  is  no  subscribing  witness,  the  instrument  may 
be  proved  by  evidence  of  the  genuineness  of  the  signature  of  the 
maker  or  obhgor.  ^  In  this  connection  we  are  brought  to  con- 
sider the  question  of  comparison  of  handwritings  ;  and  upon  this 
point  the  authorities  are  far  from  being  agreed.  Mr.  Starkie, 
speaking  as  to  the  rule  exckiding  mere  comparison  of  hand- 
Avritings,  says,  that  "  perliaps,  after  all,  the  most  satisfactory 
reason  for  it  is  that  if  such  comparison  were  allowed  it  would 
open  the  door  to  the  admission  of  a  great  de.il  of  collateral  evi- 
dence which  might  go  to  a  very  inconvenient  length  ;  for  in  every 
case  it  would  be  necessary  to  go  into  distinct  evidence  to  prove 
each  specimen  produced  to  be  genuine."^  But  though  the  wit- 
ness can  not  be  permitted  to  compare  the  papers  and  give  their 


the  Court  would,  no  doubt,  exercise  their  jurisdiction  of  punishing  for  a  contempt. 
But  the  fraud  is  one  which,  in  the  mnjority  of  cases,  it  would  not  occur  to  any 
one  to  commit.  The  practice  as  to  proof,  which  has  constantly  prevailed  in  cases 
of  this  kind,  shows  how  unlikely  it  is  that  such  fraud  should  occur.  The  doubt 
now  suggested  has  never  been  raised  before  the  late  cases  referred  to.  The  ob- 
servations of  Lord  Abinger  and  Alderson,  B.,  in  Greenshiclds  v.  Crawford 
(9  M.  &  W.  .S14)  apply  to  this  case.  The  transactions  of  tlie  world  could  not  go 
on  if  such  an  objection  were  to  prevail.  It  is  unfortunate  that  the  doubt  should 
ever  have  been  raised,  and  it  is  best  that  we  should  sweep  it  away  as  soon 
as  we  can." 

Patterson,  J. :  "I  concur  in  all  that  has  been  said  by  my  Lord  ;  and  the  rule 
laid  down  in  all  books  of  evidence  .ngrees  with  our  present  decision.  The  execu- 
tion of  a  deed  has  always  been  proven  by  mere  evidence  of  the  subscribing  wit- 
ness's handwriting  if  he  were  dead.  The  party  executing  an  instrument  may 
have  changed  his  residence  ;  must  a  plaintiff  show  where  he  lived  at  the  time  of 
the  execution  and  then  trace  him  through  every  change  of  habitation  until  he  is 
served  with  the  writ?     No  such  necessity  can  be  imposed." 

Williams,  J.:  "I  am  of  the  same  opinion.  It  can  not  be  said  here  there 
was  not  some  evidence  of  identity.  A  man  of  the  defendant's  name  had  kept 
money  at  the  branch  bank,  and  this  acceptance  is  proved  to  be  his  writing. 
Tiien,  is  that  man  the  defendant?  That  it  is  a  person  of  the  same  name  is  some 
evidence  until  another  party  is  pointed  out  who  might  have  been  the  acceptor. 
In  Jones  v.  Joves  (!)  M.  &  W.  7.5),  the  same  proof  was  relied  upon,  and  Lord 
Abinger  said.  The  argument  of  the  plaintiff  might  be  correct  if  the  case  had 
not  introduced  the  existence  of  many  Hugh  Joneses  in  the  neighborhood  where 
the  note  was  made.  It  appeared  that  the  name,  Hugh  Jones,  in  the  particular 
part  of  Wales,  was  so  common  as  to  hardly  be  a  name;  so  that  a  doubt  was 
raised  on  the  evidence  by  cross-examination.  That  is  not  so  here;  and  there- 
fore the  conclusion  must  be  different." 

*  Pullen  V.  Hutchinson,  12  Shept.  249. 

*  2  Starkie's  Ev.  875,  G  Am.  Ed. 


PRIVATE  WRITINGS.  3G5 


opinion  to  the  jury  as  the  result  of  such  comparison  merely,  yet 
the  jury,  under  certain  limitations,  have  been  allowed  to  assist 
their  judgment  in  this  way.  And  in  a  case  tried  before  Lord 
Kenyon,  where  there  was  contradictory  evidence  respecting 
the  defendant's  handwriting,  the  jury  were  allowed  to  compare 
bills  admitted  by  him  to  be  genuine.^  In  more  recent  English 
cases  the  doctrine  is  laid  down  thus:  that  the  court  or  jury  may 
compare  the  documents  together  when  properly  in  evidence,  and 
from  that  comparison  form  a  judgment  on  the  genuineness  of  the 
handwriting.^  The  doctrine  excluding  comparison  of  hand- 
writings was  recognized  by  the  Supreme  Couit  of  the  United 
States,^  and  it  was  held  by  that  Court,  that  evidence  by  com- 
parison of  hands  was  not  admissible  when  the  witness  gained  his 
information,  not  from  having  seen  the  handwriting  and  knowing 
it  to  be  genuine,  but  merely  from  comparison.^  The  same  rule 
was  adhered  to  by  Chancellor  Kent,  who  said,  "It  is  usual  for 
witnesses  to  prove  handwriting  from  previous  knowledge  of  the 
hand  derived  from  having  seen  the  person  write,  or  from  authen- 
"4  tic  papers  received  in  the  course  of  business.  If  the  witness  had 
no  previous  knowledge,  he  then  can  not  be  permitted  to  decide  it 
in  court  by  a  mere  comparison  of  hands."  Bronson,  Ch.  J.,  in 
delivering  the  opinion  of  the  Court  in  the  case  of  The  People  v. 


^  De  Costa  v.  Pyme,  Peake's  Add.  Cases.  144;  AlUshrook  v.  Roach, 
1  Esp.  R.  351. 

^  Griffith  v.  Williams,  1  Crom.  &  Jarv.  47. 

^  It  is  a  general  rule,  that  evidence  by  comparison  of  hands  is  not  admissible 
where  the  witness  has  had  no  previous  knowledj^e  of  the  handwriting  but  is  called 
upon  to  testify  merely  from  a  comparison  of  hands.  There  may  be  cases  where, 
from  the  ajitiquity  of  the  writing,  it  is  impossible  for  any  living  witness  to  swear 
that  he  ever  saw  the  party  write,  comparison  of  handwriting  with  documents 
known  to  be  in  his  handwriting  has  been  admitted.  But  these  were  extraordi- 
nary instances,  arising  from  the  necessity  of  the  cases  and  the  surrounding  cir- 
cumstances.    Sfrother  v.  Lucas,  10  Curtis,  36S. 

*  The  rule  that  the  genuineness  of  handwriting  can  not  be  proved  or  disproved 
by  allowing  the  jui-y  to  compare  it  with  the  handwriting  of  the  party  proved  or 
admitted  to  be  genuine  obtains  in  criminal  as  well  as  civil  cases.  The  genuine- 
ness of  a  promissory  note  could  not  be  so  proved,  though  the  matter  in  contro- 
versy did  not  amount  to  five  dollars.  Certainly,  then,  where  the  life  of  a  human 
being  may  depend  on  the  result,  the  rule  of  law  can  not  be  less  strict.  We  shall 
not  stop  now  to  discuss  the  propriety  or  reason  of  this  rule.  It  is  sufficient  that 
it  is  well  settled  and  universally  observed.     Jitmpertz  v.  People,  21  Ills.  408. 


366  ECCLESIASTICAL  LAW. 


Spoone,^  says:  "The  general  rule  is,  that  a  witness  must  have 
acquired  a  knowledge  of  the  party's  handwriting,  either  hy  see- 
ing him  write,  by  corresponding  with  him,  or  in  some  other  way, 
before  he  is  qualified  to  speak  on  the  subject.  An  exception  to 
the  rule  has  sometimes  been  made,  and  persons  supposed  to  be 
skilled  in  detecting  forgeries,  although  not  acquainted  Avith  the 
party's  handwriting,  have  been  allowed  to  give  their  opinion  on 
the  question  whether  a  particular  instrument  or  signature  was 
written  in  a  genuine  or  imitated  character."  Private  writings 
may  be  proved  by  a  witness  who  has  seen  letters  or  documents 
purporting  to  be  in  the  handw^riting  of  the  party  and  afterwards 
has  personally  communicated  with  him  respecting  them,  or  has 
acted  upon  them,  the  party  having  known  and  acquiesced  in 
such  acts,  which  is  nothing  more,  in  its  nature,  than  comparison. 
The  principle  upon  which  evidence  of  this  character  is  received 
is,  that  the  Avitness  has  an  exemplar  in  his  mind,  derived  from 
previous  knowledge  founded  upon  belief;  and  he  may  always  be 
interrogated  as  to  the  circumstances  on  Avhich  he  founds  his  be- 
lief. The  American  decisions  on  the  question  of  admitting 
writing  in  evidence  for  the  sole  purpose  of  establishing  a  stand- 
ard of  comparison  of  handwriting,  is  far  from  uniform.  Each 
State  is  governed,  in  a  great  measure,  by  the  decision  of  its  own 
Superior  Courts.^ 

1  1  Denio,  344. 

2  Such  writings  are  rejected  in  all  the  States  that  have  adopted  the  English 
rule.  Among  them  are  New  York,  Virginia,  and  North  Carolina.  (9  Cowen  94; 
2John.210;  1  Dcnio,34:5;  1  Leigh, 216;  1  Hawks,  0;  1  Iredell,  R.  Ki).  Rhode 
Island  generally  follows  the  English  rule.  (2  R.  I.  Rep.  319).  The  weight  of 
authority  in  Kentucky  is  in  favor  of  the  English  rule.  (13  B.  Mon.  258).  In  Massa- 
chnsetts,  Maine,  and  Connecticut,  papers,  whether  relevant  or  irrelevant  to  the 
issue,  are  admitted  to  the  jury  for  the  purpose  of  comparison  of  the  handwriting. 
(11  Ma.ss.  309;  17  Pick.  490;  21  Pick.  315;  2Greenl.  33;  9  Cowen,  55).  In 
New  Hampshire  and  South  Carolina  such  papers  are  admitted  in  doubtful  cases. 
(3  N.  H.  47  :  5  N.  H.  3(57  ;  3  M'C.  518  ;  2  Nott  &  M'C.  401).  In  Pennsylvania 
the  admission  has  been  limited  to  papers  conceded  to  be  genuine.  (3  Hinn.  340; 
10  S.  &  R.  110;  (i  Whart.  284;  1  Penn.  R.  IGl  ;  7  Penn.  Law  Journal,  286; 
3  Greenl.  Ev.  g  100,  note). 


I 


Part  Fifth. 
PRACTICE. 


CHAPTER  I. 

THE   ATTENDANCE    OF   WITNESSES. 

The  process  by  which  the  attendance  of  witnesses  is  enforced 
in  our  civil  courts  is  familiarly  known  by  the  name  of  subpoena, 
or,  as  it  is  technically  called,  siibpcvna  ad  testificandum.  This 
writ  commands  the  witness  to  appear  at  the  trial  to  testify  to 
what  he  knows  in  the  cause.  Under  the  statute  of  5  Elizabeth, 
c.  9,  s.  12,  a  penalty  by  this  statute  of  .£10  was  to  be  forfeited 
to  the  king  by  the  party  subpoenaed  in  case  he  failed  to  obey  the 
mandate  of  the  writ ;  but  this  penalty  is  not  ordinarily  enforce- 
able in  this  country  against  the  witness ;  but  where  the  witness 
fails  to  attend  upon  the  trial  at  the  time  and  place  fixed  in  the 
writ,  he  is  regarded  as  being  in  contempt  of  the  process  of  the 
court,  and  is  liable  to  pay  a  reasonable  fine,  such  as  may  be  ad- 
judged against  him  by  the  court,  unless  he  purges  the  contempt 
by  showing  a  reasonable  excuse  for  liis  failure.  By  the  practice, 
uniform  in  all  the  States,  a  writ  of  attachment  of  contempt  on 
the  application  of  the  party  desiring  the  attendance  of  the 
witness  where  he  has  been  previously  summoned,  may  be 
regularly  obtained  by  order  of  the  court  commanding  the  sheriflF 
to  arrest  such  witness  and  bring  him  into  court,  there  to  be  dealt 
with  according  to  law.  "When  a  Avitness  is  brought  into  court 
under  process  of  attachment  for  contempt,  he  may  be  examined 
touching  the  alleged  contempt  under  oath,  and  if  he  purges  the 
contempt  by  showing  a  reasonable  excuse  for  his  non-attendance, 
and  also  manifests  a  willingness  to  appear  and  testify  in  the 
cause  in  which  he  was  subpoenaed,  he  may  be  discharged :  other- 
wise he  is  required  to  pay  a  fine  or  be  amerced  for  such  reason- 
able amount  as  may  be  adjudged  against  him  by  the  court,  in- 
cluding the  cost  of  his  arrest  and  the  proceeding,  and  may  be 

367 


368  ECCLESIASTICAL  LAW. 

committed  until  the  fine  and  costs  are  paid.  In  addition  to  the 
liability  of  a  witness  who  has  been  subpoenaed  and  who  has  refused 
to  obey  the  process  of  the  court  to  the  penalty  above  referred  to. 
he  is  liable  to  the  party  who  has  been  injured  by  his  non-attend- 
ance to  the  extent  of  whatever  loss  such  party  has  sustained  by 
reason  of  his  failure  to  appear  and  testify,' 

The  object  of  the  law  in  providing  the  process  of  subpoena  to 
compel  the  attendance  of  witnesses  being  simply  to  enforce  the 
attendance  of  the  witness  upon  the  trial,  it  follows  that  a  witness 
may  attend  and  be  sworn  and  examined  voluntarily,  though  this 
was  formerly  held  to  be  maintenance,  that  is,  encouraging  litiga- 
tion.    The  writ  of  subpoena  is  of  course  in  its  own  nature  inop- 

^  Unless  the  contempt  is  pui-cred,  the  witness  will  be  fined  not  only  the  costs 
of  the  attachment,  but  to  the  full  amount  of  the  costs  of  the  circuit  incurred  by 
the  party  who  subpoenaed  him,  if  the  trial  was  put  off  in  consequence  of  his  non- 
attendance.  The  opinion  of  the  Court  delivered  by  Cowen,  J.,  is  as  follows  on 
this  point:  "  The  process  of  subpoena  demands  great  and  extraordinary  effort  on 
the  part  of  the  witness  to  obey.  It  commands  him  expressly  to  lay  aside  his 
business  and  excuse.  And,  while  it  lays  him  under  severe  obligations,  it  clears 
away  obstructions  in  the  path  of  obedience.  The  witness  was  alwaj's  privileged 
from  arrest  on  civil  process  in  going,  staying,  and  returning.  It  is  not  denied 
that  serious  sickness  in  his  family,  such  as  would  prevent  a  prudent  father  or 
husband  from  leaving  home  on  his  own  important  business,  would  save  him  from 
the  imputation  of  a  contempt,  and  perhaps  from  an  action.  But  such  a  case 
ought  clearly  to  be  shown  to  the  court,  and  not  left  to  be  judicially  inferred  by 
the  witness  when  arraigned  on  a  criminal  charge.  He  may  exculpate  himself 
by  swearing  to  facts  in  answer  to  the  interrogatories,  provided  he  remains  un- 
contradicted. But  his  oath  must  give  facts  as  contradistinguished  from  his  in- 
ferences. Above  all,  where  the  summons  allows  him  full  time  he  should  struggle 
to  get  ready,  as  he  would  to  J»o  abroad  on  his  own  pressing  business.  If  inevit- 
ably disappointed,  after  exhausting  every  reasonable  expedient,  he  ought  cer- 
tainly to  be  excused  from  the  payment  of  a  penalty  which  presupposes  some 
degree  of  neglect  at  least.  Witnesses  are  the  summary  instruments  of  investi- 
gation in  all  our  common  law  courts.  It  is  not  till  a  positive  disability  is 
apparent  that  their  domestic  examination  will  be  received  as  a  substitute  for 
their  actual  presence.  The  important  right  of  oral  examination  and  cross-exam- 
ination is  at  stake,  and  every  good  citizen,  if  he  could  be  supposed  to  regard 
nothing  beyond  his  own  rights,  should  struggle  for  the  front  rank  in  the  order  of 
obedience.  The  least  we  can  say  of  tiie  case  before  us  is,  that  it  presents  an 
unpleasatit  contrast  to  all  this;  great  diligence  from  first  to  last  in  devising  col- 
orable excuses,  without  lifting  a  finger  in  preparation  to  go  forward.  The 
defendant  must  be  fined,  and  the  fine  ought,  at  least,  to  be  so  large  as  to  indem- 
nify the  plaintiff  Kelly  against  the  expense  of  the  last  circuit,  with  the  cost  of 
this  proceeding."     The  People  v.  Davis,  15  Wendell,  608. 


THE  ATTENDANCE  OF  WITNESSES.  369 

orative  beyond  the  territorial  jurisdiction  of  the  court  from 
whence  it  issues,  but  it  often  acquires  a  more  extensive  range  by 
statute.  Thus,  a  witness  residing  within  a  liundrcd  miles  from 
the  place  of  holding  a  court  in  any  district  of  the  United  States, 
may  be  compelled  to  attend  such  court  by  its  process  of  subpoena, 
though  his  residence  be  without  the  district. '  The  courts  of  one 
State  possess  no  authority  to  send  its  process  of  subpoena  to  be 
served  upon  a  witness  residing  in  another  State.  This  is  a  seri- 
ous detriment,  especially  in  the  administration  of  the  criminal 
law,  where  the  witness  is  required  to  confront  the  accused  face  to 
face.  The  same  defect  exists  in  the  authority  of  the  federal 
court  to  compel  the  attendance  of  witnesses  in  a  criminal  case, 
where  the  witness  is  beyond  the  limits  of  the  State  in  which  the 
court  is  being  held  ;  for  by  the  Constitution  of  the  United  States, 
and  of  nearly  every  State  in  the  Union  on  indictments  for  trea- 
son or  feh:)ny,  the  depositions  of  absent  Avitnesses  are  not  receiv- 
able in  evidence.^      There  is  no  authority  conferred  upon  the 

1  Act  of  March  2,  1793. 

^  It  is  generally  agreed  that  depositions  taken  in  pursuance  of  these  statutes 
may,  when  the  witness  is  dead,  and  in  some  other  cases,  be  read  in  evidence  on 
the  trial.  The  statutes  do  not  (that  is,  the  statutes  of  New  York)  provide  that 
depositions  shall  be  evidence;  but  they  are  admitted  on  the  ground  that  they 
have  been  taken  in  the  course  of  a  judicial  proceeding  expressly  authorized  by 
law,  when  the  defendant  was  present  and  had  the  right  of  cross-examination. 
It  is  sometimes  said  in  the  books  that  the  deposition  is  admitted  because  it  is  not 
extra-judicial.  But  that  is  only  a  part  of  the  true  reason,  and  is  calculated  to 
mislead.  Going  upon  that  reason  alone,  the  original  complaint  on  oath  before 
the  magistrate  on  applying  for  the  warrant  would  be  admissible  evidence  against 
the  defendant,  although  he  had  not  then  been  brought  into  Court.  That  is  a  judi- 
cial proceeding;  and  yet  I  am  not  aware  that  the  original  complaint  was  ever 
received  in  evidence  against  the  defendant.  The  contrary  was  expressly  adjudged 
in  the  State  v.  Hill,  1  Hill's  Law  Rep.  S.  C.  G09.  The  deposition  must  not 
only  be  taken  in  a  judicial  proceeding,  but  it  must  be  taken  when  the  defendant 
is  present  and  has  the  opportunity  to  cross-examine  the  witness,  otherwise  it  will 
not  be  received. 

It  is  said  that  depositions  taken  by  the  coroner  on  holding  an  inquest  are 
evidence,  although  the  defendant  was  not  present  when  they  were  taken.  This 
doctrine  has  been  gravely  questioned,  and  I  am  strongly  inclined  to  the  opinion 
that  it  can  not  be  maintained.  The  great  principle  that  the  accuser  and  the 
accused  must  be  brought  face  to  face  to  face,  and  that  the  latter  shall  have  the 
opportunity  to  cross-examine,  can  never  be  departed  from  with  safety.  Neither 
life  nor  liberty  should  ever  be  put  in  peril  by  listening  to  ex  parte  depositions. 
It  is  better  that  the  guilty  should  sometimes  go  free,  than  that  the  innocent 


370  ECCLESIASTICAL  LAW. 

Church,  upon  a  Church  trial  or  investigation,  to  compel  or  enforce 
the  attendance  of  witnesses.  The  Church,  as  Ave  have  previously 
seen,  is  onlj  a  voluntary  organization,  clothed  with  such  au- 
thority over  its  own  membership  as  is  conferred  by  the  Disci- 
cipline.  The  law  simply  recognizes  its  existence  so  far  as  to 
confer  upon  it  certain  rights  and  privileges,  but  giving  it  no 
authority  to  hold  courts  or  enforce  the  attendance  of  witnesses. 
The  authority  to  hold  judicial  investigations  in  the  Church  is  not 
conferred  upon  it  by  law,  but  is  inherent  in  it  as  a  voluntary  or- 
ganization, for  its  own  protection,  and  the  preservation  of  its 
purity.  Hence  the  witnesses  attend  and  give  their  testimony 
voluntarily  without  oath,  or  without  the  sanctions  of  the  law,  any 
further  than  such  sanction  may  be  implied.  If,  however,  a  mem- 
ber of  the  Church,  duly  notified  of  a  Church  trial  or  investiga- 
tion was  to  refuse  to  attend  and  testify,  the  Church  has  authority 
to  treat  such  member  precisely  as  courts  of  law  treat  a  witness 
who  refuses  to  obey  its  process.  The  Church  may  deal  with 
such  a  member  canonically,  as  for  a  contempt  of  Church  author- 
ity, and  may  reprehend  him;  or  where  the  witness  is  guilty  of 
contumacy,  and  stands  in  willful  contempt  and  disobedience  to 
the  lawful  request  of  the  Church,  he  may  be  arraigned,  tried, 
and  expelled,  which  would  be  nothing  but  justice  and  right, 
where  such  a  one  should  be  so  willful  and  disregardful  of  the 
well-being  of  the  Church. 

The  Discipline  provides,  in  case  of  a  trial  or  investigation 
before  a  Church  tribunal,  that  the  witnesses,  whether  members 
of  the  Church  or  not,  shall  be  competent  to  gWe  evidence  upon 
such  trial  or  investigation ;  and  where  the  witness  is  absent, 
and  it  is  not  practicable  for  him  to  attend,  his  testimony  may 
be  taken  in  the  form  of  a  deposition  before  the  preacher  in  charge, 

should  be  subject  to  such  an  ordeal.  2  Stark.  Ev.  489-493;  2  Russ.  on  Crime, 
661 ;  Roscoe's  Cr.  Ev.  53,  54;  The  People  v.  Restell,  3  Hill,  296,  29Y. 

By  section  six  of  the  amendments  to  the  Constitution  of  the  United  State 
it  is  provided  "That  in  all  criminal  prosecutions  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law;  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation  to  be  confronted  with  the  witnesses  against  him  ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of  coun- 
sel for  his  defense."     See  Constitution  of  U.  S.  sixth  amendment. 


THE  ATTENDANCE  OF  WITNESSES.  371 

or  before  a  preacher  appointed  by  tbe  presiding  elder  of  the  dis- 
trict Avithiu  which  such  Avitness  resides.  Before,  however,  this 
can  be  done,  it  is  necessary  that  regular  charges  and  specifica- 
tions should  be  made  out,  and  the  accused  served  with  a  copy 
thereof,  so  as  to  make  the  cause  Us  pendens  or  pending  ;  for  until 
proceedings  have  been  commenced,  and  the  accused  has  been 
notified  thereof,  so  as  to  make  him  amenable  to  the  jurisdiction  of 
the  Church  tribunal  before  which  the  proceedings  are  to  take 
place,  neither  the  preacher  in  charge  nor  a  preacher  appointed 
by  the  presiding  elder  of  the  district  has  any  authority  to  take 
such  deposition ;  and  if  the  same  is  taken  without  a  substantial 
compliance  with  the  requirements  of  the  Discipline,  it  may,  on 
the  motion  of  the  opposing  party,  be  suppressed.  Before  taking 
a  deposition  to  be  used  in  a  Church  trial,  a  notice  must  be  given 
to  the  adverse  party  of  the  time  and  place  of  taking  such  testi- 
mony, so  that  such  adverse  party  may  have  a  full  opportunity  of 
appearing  and  cross-examining  the  wit)iess  or  witnesses.  The 
notice  required  by  the  Discipline  should  be  in  writing,  and  should 
name  the  witness  or  witnesses  whose  testimony  is  to  be  taken. 
By  the  common  law,  all  witnesses  were  required  to  give  their  tes- 
timony in  open  court,  but  as  the  commercial  interest  of  the  na- 
tions expanded  and  man  became  more  migratory,  the  rule  was 
found  to  be  impracticable,  and  the  common  law  being  elastic,  was 
so  extended  as  to  authorize  the  parties  in  civil  causes  to  take 
the  testimony  of  witnesses  by  deposition  before  officers  authorized 
by  law  or  before  commissioners  appointed  by  a  commission  called 
a  dedimus  potestafem.  In  taking  a  deposition,  the  officer  or 
preacher  has  no  authority  to  decide  any  preliminary  question. 
If  a  question  is  objected  to,  the  person  authorized  to  take  the 
deposition  should  note  the  objection  and  reduce  the  question  and 
answer  to  writing  in  the  deposition,  leaving  its  decision  to  the 
court  or  presiding  officer  before  whom  the  trial  is  to  take  place.  ^ 


^  In  the  case  of  AuU  v.  Rawson,  14  Ills.  484,  it  was  held,  that  it  was  compe- 
tent to  prove  a  release  of  a  witness's  interest  on  his  voir  dire.  In  the  case  of 
Goodrich  v.  Hanson  and  Pearson,  33  Ills.  509,  the  Court  say  no  reason  is  per- 
ceived why  the  same  thing  may  not  be  done  when  the  question  arises  on  his 
examination  in  chief.  When  the  deposition  was  taken  the  defendants  in  error 
were  present,  but  they  made  no  objection  on  the  ground  of  interest.  The  ques- 
tion was  asked  by  the  opposite  party,  and  the  defendants  made  no  objection  to 


372  ECCLESIASTICAL  T-AW. 

When  a  deposition  lias  been  taken  eitlier  by  the  plaintiff  or 
the  defendant,  and  placed  upon  the  files  of  the  court,  it  may  be 
read  by  either  party.  The  party  taking  the  deposition,  where  it 
is  offered  to  be  read  by  the  opposite  party,  can  not  object  that 
the  other  party  had  no  notice  of  the  taking  of  the  deposition  ; 
but  he  may  object  to  the  reading  of  the  deposition,  provided 
it  is  not  duly  authenticated,  or  where  the  certificate  of  the 
officer  or  preacher  is  not  in  compliance  with  the  require- 
ments of  the  statute  or  of  the  usages  of  the  Church.^  It  is 
not  necessary  that  the  deposition  should  be  reduced  to  writing 
by  the  preacher  in  charge  or  by  the  preacher  appointed  by 
the  presiding  elder,  but  any  competent  person  may  reduce  the 
same  to  writing,  provided  that  the  deposition  is  taken  in  the 
presence  of  such  preacher  and  duly  certified  or  authenticated  by 
him.  It  must  appear  expressly,  however,  on  the  face  of  the  dep- 
osition, that  it  was  taken  before  the  preacher  authorized  to  take 
the  same,  and  reduced  to  writing  in  his  presence.     The  certifi- 

its  being  answered.  By  failing  to  object  at  the  time  when  the  opposite  party 
could  have  had  the  opportunity  of  obviating  the  objection,  they  waived  the  right 
to  raise  the  question  in  the  Circuit  Court.  To  permit  the  question  to  be  raised 
on  the  trial  would  be  to  give  an  unfair  advantage  to  the  party  resisting  the  in- 
troduction of  the  evidence.  To  have  been  available,  the  objection  should  have 
been  made  and  noted  when  the  deposition  was  taken.  Even  if  this  witness  had 
been  incompetent  on  the  account  of  his  interest,  the  objection  comes  too  late 
when  made  in  the  Circuit  Court  for  the  first  time.  It  is  not  material  to  deter- 
mine whether  the  questions  were  leading,  as  no  such  objection  was  noted  when 
the  questions  were  propounded  to  the  witness.  If  the  objection  had  then  been 
made,  it  would  have  afforded  the  opposite  party  the  opportunity  of  removing  the 
objection  by  reconstructing  the  interrogatory.  A  party  has  no  right  to  lie  by 
and  permit  his  adversary  to  take  evidence  without  objection,  and  when  it  is 
offered  to  be  read  then,  for  the  first  time,  to  raise  mere  technical  objections  cal- 
culated to  produce  costs  and  delay.  Such  a  practice  would  not  tend  in  the 
slightest  degree  to  promote  justice.  If  the  witness  might  be  led  in  giving  his 
evidence,  it  is  no  hardship  to  require  the  opposite  party  to  object  at  the  time  to 
the  mode  of  examination  adopted.  If,  however,  the  party  against  whom  the  dep- 
osition is  intended  to  be  used  is  not  present  when  it  is  taken,  the  rule  would  not 
apply,  but  only  in  cases  where  he  is  present  and  has  the  opportunity  of  having 
the  objection  noted. 

^  The  defendant  is  not  at  liberty  to  except  to  his  own  depositions  because  he 
does  not  produce  proof  of  his  having  given  notice  to  the  plaintiff.  The  admis- 
sion of  notice  by  the  i)laintiff  is  certainly  sufficient,  if  notice  to  him  was  neces- 
sary, to  enable  him  to  use  the  defendant's  deposition.  Yeaion  v.  F)-y._  2 
Curtis,  288. 


THE  ATTENDANCE  OF  WI  TNESSES.  ^73 

cate  is  good  evidence,  if  not  conclusive  evidence,  that  the  re- 
quirements of  the  statute  or  of  the  canons  of  the  Ohui'ch  in  the 
taking  of  such  deposition  liave  been  substantially  complied  with. 

Formal  objections  to  a  deposition,  or  to  the  authentication,  or 
to  the  incompetency  of  the  witness  for  any  cause,  should  be  made 
on  a  motion  to  suppress  the  deposition  before  the  commencement 
of  the  trial  or  investigation  ;  for  it  is  too  late,  on  the  hearing,  to 
raise  the  objection.  The  rule  has  been  long  settled,  that  objec- 
tions that  can  be  obviated  by  release  or  by  the  retaking  of  the 
deposition  must  be  regularly  made  before  the  commencement  of 
the  trial  or  investigation;^  but  statements  in  a  deposition  which 
are  not  legitimate  evidence,  like  hearsay,  may  be  objected  to  on 
the  trial ;  but  those  which  are  objectionable  merely  because  sec- 
ondary evidence,  should  be  excepted  to  before  the  trial.  ^ 

We  have  been  considering  the  taking  of  depositions  on  oral 
interrogatories,  in  pursuance  of  notice  given  by  one  party  to  the 
other.  Such  notice  should  be  given  a  reasonable  time  prior  to 
the  taking  of  the  deposition,  so  as  to  enable  the  opposite  party  to 
be  in  attendance  and  cross-examine  the  witness.  Where  a  party 
gives  notice  of  the  taking  of  several  depositions  in  different 
places  on  the  same  day,  so  that  the  opposite  party  can  not  be 
present  at  all  the  places  to  cross-examine  all  the  witnesses,  he 

^  In  Frink  v.  M '  Creery,  4  Gilm.  577,  the  Court  said  :  "  It  is  a  well  established 
and  universal  rule  on  the  circuit,  that  all  exceptions  to  depositions  which  go  to 
their  form  or  to  the  incompetency  of  the  witnesses,  must  be  made  before  the 
cause  is  called  for  trial  and  submitted  to  the  jury."  So  in  the  case  of  Webb  et 
al.  V.  The  Alton,  etc.,  5  Gilm.  225,  the  Court  said:  "  If  the  witness  was  disquali- 
fied on  the  score  of  interest,  the  objection  should  have  been  taken  in  the  court 
below  by  a  direct  application  to  exclude  the  deposition.  A  party  is  not  permit- 
ted to  remain  silent  while  the  cause  is  progressing  and  then  raise  such  objection 
at  the  hearing  or  in  the  appellate  court.  Such  a  practice  would  occasion  much 
delay  and  inconvenience,  and  often  operate  as  a  fatal  surprise  to  the  adverse 
party."  Corgan  v.  Anderson,  30  Ills.  95;  Gregory  v.  Dodge,  14  Wendell,  593; 
Sheldon  v.  Wood,  2  Bos.  2GY;  S.  C.  24  N.  Y.  607. 

^  It  is  the  well  settled  practice  in  all  the  courts  of  this  State  to  move  to  sup 
press  depositions,  especially  those  of  non-resident  witnesses,  after  leave  has  been 
obtained  to  open  them,  before  the  trial  is  entered  upon.  The  grounds  of  the 
motion  are  also  to  be  specifically  stated,  so  that  the  defects,  if  any  exist,  may  be 
supplied  if  possible.  As  a  general  rule,  the  court  will  notice  only  such  objec- 
tions as  are  specifically  made.  If  objections  are  not  made  before  the  trial,  they 
can  not,  usually,  be  made  afterwards,  unless  they  are  such  as  can  be  obviated. 
Corgan  et  al.  v.  Anderson,  30  Ills.  97. 

25 


374  ECCLESIASTICAL  LAW. 

may  select  wliich  place  he  will  attend,  and  the  other  depositions 
will  be  suppressed.  What  is  a  reasonable  notice  can  not  be  de- 
termined from  the  analogies  of  the  law,  for  it  varies  in  the  differ- 
ent States,  and  is  usually  regulated  by  statute.  The  safest  rule 
that  can  be  adopted  is  probably  this,  that  the  statutory  notice 
fixed  in  the  State  in  which  the  investigation  or  trial  takes  place 
may  be  adopted.  If  the  parties  appear  and  cross-examine  the 
witness,  they  can  not  afterwards  object  to  the  sufficiency  of  the 
notice  ;  even  if  they  had  no  previous  notice  whatever,  their  ap- 
pearance and  cross-examination  before  the  person  taking  the  dep- 
osition is  a  waiver  of  notice,  and  the  party  should  not  be  per- 
mitted, either  expressly  or  impliedly,  to  waive  a  right  and 
afterwards  take  advantage  of  such  waiver. 

Besides  the  taking  of  depositions  upon  oral  interrogatories,  as 
contemplated  by  ^  228  of  the  Discipline,  the  parties  may,  by 
agreement,  take  them  by  written  interrogatories ;  but  where  a 
deposition  is  taken  upon  written  interrogatories,  each  interroga- 
tory should  be  written  out  at  length,  and  the  answer  thereto 
written  directly  under  such  interrogatory ;  and  the  person  taking 
such  deposition  upon  written  interrogatories  should  be  careful  to 
have  the  same  clearly  and  distinctly  answered,  for  there  is  not 
the  same  opportunity  of  obtaining  the  testimony  of  the  witness 
upon  written  interrogatories  as  there  is  upon  oral,  unless  this 
rule  is  carefully  observed.  The  witness,  where  his  testimony  is 
taken  upon  written  interrogatories,  can  not  be  asked  by  the  per- 
son taking  the  same  any  additional  questions  which  are  not  em- 
braced in  the  interrogatories  in  chief  or  cross-interrogatories. 
Another  rule  is,  that  in  taking  depositions  upon  written  interro- 
gatories, full  and  complete  answers  should  be  given  to  all  the  in- 
terrogatories, whether  in  chief  or  on  cross  -  examination.  A 
question  sometimes  arises  as  to  whether  a  deposition  tliat  is  in- 
complete is  admissible  in  evidence.  No  general  rule  can  be  laid 
down  in  respect  to  unfinished  testimony,  and  the  authorities  are 
not  uniform.  If,  however,  a  deposition  is  substantially  complete, 
and  the  witness  is  prevented  by  sickness  or  death  from  finishing 
his  testimony,  his  deposition,  it  would  seem  on  principle,  ought 
not  to  be  rejected,  but  submitted  to  the  jury  with  such  observa- 
tions as  the  particular  circumstances  may  require.  But  if  it  is 
not  so  advanced  as  to  be  substantially  completed,  it  should  be 


THE  AT'1■ENDA^XE  OF  WITNESSES.  375 

rejected;  or  where  the  answers  to  tlie  interrogatories  in  eliiet"  arc 
complete,  but  the  witness  is  prevented  by  sickness  or  other  in- 
evitable cause  from  answering  the  cross-interrogatories,  his  tes- 
timony should  be  rejected ;  for  in  such  a  case  the  deposition  is 
no  better  than  a  mere  ex  parte  affidavit. 

A  mere  voluntary  ex  2mrte  affidavit  of  a  third  person,  neither 
a  party  nor  a  witness  in  the  cause,  is  not,  as  a  general  rule,  ad- 
missible as  evidence.  It  is  at  most  regarded  as  only  hearsay 
evidence,  and  it  differs  from  a  deposition,  properly  so  called,  in 
two  essential  particulars :  first,  depositions  are  taken  by  some 
court  or  by  an  express  authority  derived  therefrom,  or  under 
some  statute ;  and,  second,  they  are  always  taken  upon  actual 
notice  to  the  adverse  party  if  practicable.  But  a  voluntary  affi- 
davit or  deposition  is  sometimes  admissible  as  a  declaration:  as 
in  cases  of  pedigree,  ancient  boundaries,  and  the  like,  and  in 
cases  in  articulo  mortis ;  thus,  where  a  prisoner  being  indicted 
for  murder  was  upon  trial,  the  deposition  of  the  deceased,  made 
under  the  following  circumstances,  was  offered  to  be  read  in  evi- 
dence on  the  day  previous  to  his  death ;  and  when,  as  it  ap- 
peared, he  manifested  no  apprehension  of  dying  of  the  wound, 
he  deposed  to  the  occurrence  when  the  mortal  blow  was  given. 
On  the  next  day,  being  fully  conscious  that  he  was  in  extremis^  the 
deposition  was  read  over  to  him,  and  he  said  ''it  was  as  nigh  as  he 
could  recollect,''  it  was  held  that  the  deposition  was  admissible.^ 

Where  testimony  has  been  taken  in  the  form  of  depositions, 
it  has  been  made  a  question  whether  the  deposition  could  be  read 
by  the  party  taking  the  same  where  the  witness  was  present  in 
court  at  the  time  of  offering  to  read  the  deposition.  The  author- 
ities upon  this  point  are  not  uniform.  It  was  held  by  the  Supreme 
Court  of  New  York,  that  a  defendant  who  had  procured  the  tes- 
timony of  a  Avitness  residing  abroad  to  be  taken  under  a  commis- 
sion, is  not  bound,  on  the  trial  of  the  cause,  upon  the  requisition 
of  the  plaintiff,  to  call  the  witness  who  is  then  in  court  and  ex- 
amine him  viva  voce,  but  may  read  his  deposition  as  taken  under 
the  commission  ;  the  plaintiff,  however,  may  have  the  witness  sworn 
and  examined,  although  he  omitted  to  join  in  the  commission.^ 

1  The  State  v.  Furguson,  2  Hill,  619. 

^  On  the  trial,  the  plaintiff  offered  to  read  in  evidence  the  deposition  of  a 
witness  taken  in  Michigan.     The  defendant  produced  the  witness  in  court,  and 


376 


ECCLESIASTICAL  LAW. 


A  very  important  question  arises  in  tliis  connection  as  to 
whether  a  deposition,  taken  in  a  civil  suit  between  the  same  par- 
ties, or  their  privies,  involving  the  same  subject  matter,  may  be 
read  in  evidence  upon  a  Church  trial  or  investigation.  We  have 
seen  that  in  regard  to  the  admissibility  of  verdicts  and  judgments 
rendered  in  a  former  suit,  it  is  generally  necessary  that  there 
should  be  a  perfect  mutuality  between  tlie  parties  and  the  subject 
matter  of  inquiry;  but  with  respect  to  depositions  the  principle 
is  applied  with  more  latitude  of  discretion,  and  therefore  a  com- 
plete mutuality  is  not  required.  It  is  ordinarily  sufficient,  if  the 
matters  in  controversy  were  the  same  in  both  cases,  and  the 
party  against  whom  the  deposition  is  offered  might  legally  cross- 
examine  the  witness.  If,  however,  the  cross-examination  was 
necessarily  more  limited  or  restricted  in  the  former  suit  in  regard 
to  the  matter  in  controversy  than  in  the  latter,  It  would  seem  that 
the  testimony  ought  to  be  excluded.^  The  rule,  is  that  deposi- 
tions taken  in  a  former  suit  between  the  same  parties  or  privies, 
Involving  the  same  question  or  subject  matter,  are  admissible 
when  the  question  again  arises  for  judicial  determination.  And 
It  is  not  material  that  the  parties  should  be  identical,  or  that  there 
should  be  complete  mutuality  in  respect  to  their  relation,  and  to 
the  subject  matter.  It  is  sufficient  If  the  same  matter  was  in 
issue  in  both  cases;  and  those  against  Avhom  the  depositions  were 
offered,  or  those  under  whom  they  claim  the  estate  or  right  in 
question  had  opportunity  of  cross-examining  the  witness  and  test- 
ing the  truth  of  their  testimony.^  Thus,  it  has  been  held  that 
the  deposition  of  a  witness  before  a  coroner  upon  an  inquest  as 


objected  to  the  reading  of  the  deposition  for  the  reason  that  the  witness  was  in 
court,  and  the  Court  overruled  the  objection.  The  deposition  having  been  taken 
in  conformity  of  the  hiw,  was  admissible  in  evidence,  and  the  plaintiff  could  not 
be  deprived  of  using  it  by  the  act  of  the  defendant.  They  had  an  opportunity 
of  cross-examining  the  witness  when  the  deposition  was  taken.  If  they  chose 
they  could  have  called  the  witness  as  their  own  witness,  and  examined  him  gen- 
erally as  well  as'touching  the  matters  to  which  he  had  testified  in  his  deposition. 
Fink  et  al.  v.  Fotter,  17  Ills.  408. 

'  The  answers  of  a  witness  to  interrogatories  filed  are  competent  evidence 
against  him  of  the  facts  stated  therein  in  another  suit,  although  the  issues  in  the 
two  suits  be  different.      Williams  v.  Cheney  et  al.  3  Gray,  215. 

2  Wade  et  al.  v.  King,  19  111.  HOB. 
3  Greenleaf's  Ev.  §§326,  .341,  342. 


THE  ATTENDANCE  OF  WITNESSES.  377 

to  the  death  of  a  person  killed  by  the  collision  of  a  vessel  was 
admissible  in  an  action  for  the  negligent  management  of  one  of 
them  where  the  witness  was  shown  to  be  beyond  sea.^  Though 
the  general  rule  of  law  is  that  no  evidence  shall  be  admitted  but 
what  is  or  might  be  under  the  examination  of  both  parties,  yet 
this  rule  is  subject  to  some  exceptions ;  for  where  the  witness  on 
the  direct  interrogatories  answered  fully  but  refuse'd  to  answer  the 
cross  interrogatories,  the  party  producing  the  witness  will  not  be 
deprived  by  reason  of  his  refusal  of  his  testimony.  The  other 
party  might  have  obtained  an  answer  to  his  cross-interrogatories 
by  application  to  the  court  or  officer,  taking  his  deposition ;  such 
court  or  officer  would  have  compelled  him  to  answer  unless  the 
matter  sought  to  be  elicited  was  privileged. 

Depositions  as  well  as  judgments  and  verdicts  Avhich  relate  to 
pedigree,  custom,  or  prescription,  are,  as  we  have  already  shoAvn, 
admissible  in  evidence  even  against  strangers;  for  as  the  declara- 
tions of  persons  deceased  would  be  admissible  in  such  cases  a 
priori,  their  declarations  on  oath  are  admissible.^  From  anal- 
ogy we  conclude  that  depositions  taken  in  a  cause  pending  in  our 
civil  courts  might  be  read  in  evidence  upon  a  Church  trial  or  in- 
vestigation, subject  to  the  limitations  before  prescribed ;  but  the 
converse  of  this  proposition  is  not  true.  A  deposition  taken 
before  an  ecclesiastical  court  or  by  its  authority  under  the  canons 
of  the  Church,  can  not  be  read  in  evidence  in  our  civil  courts  ;"* 
for  one  of  the  essential  elements  as  a  test  of  its  admissibility  is 
wanting,  namely,  the  sanctions  of  the  oath.  But  such  deposi- 
tion, while  it  would  not  be  admissible  as  between  other  parties  in 
a  civil  suit,  might  be  read  in  evidence  by  the  adverse  paity  in  a 
suit  against  the  witness  as  a  simple  declaration  or  admission  of 
the  witness. 

1  Sills  V.  Brown,  9  C.  &.  P.   601--603 ;   Bex  v.  Erisicell,  3  Teiin  R.  707, 
712,721. 

2  Bull  Xisi  Prius,  339,  340. 

^  Depositions,  however,  are  sometimes  introduced  between  other  parlies  for 
the  purpose  of  showing  that  a  witness  sworn  has  on  a  former  occasion  (jiven  a 
different  account  of  the  same  niattei-,  in  order  to  discredit  his  testimony:  and  in 
such  case,  if  one  party  reads  part  of  the  deposition  in  order  to  show  tliat  the 
witness  swore  differently  from  what  he  now  swears,  the  other  may  read  i!ie  whole 
to  show  his  consistency.  Harrison  v.  Roican,  3  Wash.  C.  C.  Rep.  o^h. 
See  Temperhj  v.  Scott,  5  Car.  &  Payne,  341. 


378  ECCLESIASTICAL  LAW. 


CHAPTER  II. 

THE   EXAMINATION   OF   WITNESSES. 

Having  considered  some  of  the  elementary  principles  founded 
upon  the  rules  of  evidence,  and  the  means  of  procuring  the  at- 
tendance of  witnesses,  and  the  admissibility  of  depositions,  Ave 
are  led  now  to  consider  the  manner  in  which  witnesses  are  to  be 
examined  in  a  Church  trial  or  investigation,  and  upon  this  point 
it  is  difficult  to  lay  down  any  exact  rule;  for  the  subject  lies,  to  a 
very  great  extent,  in  the  discretion  of  the  preacher  in  charge  or 
other  presiding  officer  before  whom  the  cause  is  tried.  It  is  im- 
practicable, from  the  very  nature  of  things,  and  the  varied  cir- 
cumstances surrounding  each  case  or  each  investigation,  to  fix 
but  few  stringent  and  positive  rules.  The  primary  object,  as  we 
have  before  remarked,  is  to  elicit  the  truth  from  the  witness,  and 
in  doing  so  the  judge  or  presiding  officer  should  take  into  consid- 
eration the  character,  moral  courage,  intelligence,  memory,  bias, 
and  other  circumstances,  so  various  as  to  require  equal  variety 
in  the  manner  of  interrogation  and  the  intensity  of  examination 
allowable  to  attain  that  end.  It  may  also  be  proper  to  remark  in 
this  connection  that  the  circumstances  of  the  trial  must  necessa- 
rily be  judged  of  by  the  presiding  officer  and  varied  so  as  to  meet 
the  variant  exigencies;  and  his  discretion,  when  exercised,  is  not 
subject  to  be  reviewed  or  revised  by  an  appellate  jurisdiction. 
Where  a  witness  has  been  produced,  if  there  is  any  objection  to 
Ills  competency,  such  objection  should  be  made  before  his  testi- 
mony in  chief  has  been  given;  the  opposite  party,  against  whom 
the  witness  is  introduced  to  testify,  should  not  be  permitted  to 
experiment  by  receiving  the  testimony  of  an  incompetent  wit- 
ness if  It  is  favorable,  or  moving  to  exclude  it  from  the  consider- 
ation of  the  committee  if  it  is  opposed.  When  a  witness  is  called 
he  is  first  regularly  examined  by  the  part}^  introducing  him, 
which  is  called  in  law  the  direct  examination ;  he  may  afterwards, 
and  before  he  leaves  the  Avitness  stand,  be  examined  touching  the 
same  subject  matter  by  the  adverse  party.  This  examination  is 
called  the  cross-examination.  The  examination  in  chief  and  the 
cross-examination  are  conducted  orally,  In  the  presence  of  the 


THE  EXAMINATIOxM  OF  WITNESSES.  379 

court  and  jury,  or  in  the  presence  of  tlic  presiding  ofTicer,  confer- 
ence, or  committee  under  the  regulation  and  order  of  the  judge, 
bishop,  presiding  officer,  or  preacher.  The  practice,  in  the  direct 
examination  of  a  witness,  is  not  to  allow  counsel  to  put  to  him 
questions  that  are  termed  leading,  that  is,  questions  which  sug- 
gest to  the  witness  the  answer  which  is  desired  to  be  obtained. 
This  rule  is  so  largely  in  the  discretion  of  the  presiding  officer, 
and  so  difficult  of  application  in  practice,  owing  to  the  different 
degrees  of  intelligence  possessed  by  the  witness  and  his  bias  or 
fairness,  that  it  can  scarcely  be  regarded  as  amounting  to  any 
thing  more  than  a  simple  landmark  ;  it  is  also  to  be  understood 
in  a  practical  sense,  for  often  it  is  necessary  to  approach  the  point 
which  the  testimony  elicited  is  sought  to  establish,  by  direct 
questions ;  were  it  otherwise,  the  examination  would  often  be 
protracted  to  an  inconvenient  length  without  any  practical  ad- 
vantage to  either  side ;  therefore,  counsel  may  lead  him  up  to  the 
point  in  issue,  and  may  even  state  to  him  the  facts  which  are  not 
controverted,  or  which  have  been  already  established.  And 
some  of  our  best  legal  practitioners  are  never  heard  to  object  to 
a  question  because  it  is  leading,  though  in  strictness  leading 
questions  which  embody  facts  that  are  material  and  admit  of  a 
simple  affirmative  or  negative  answer  are  objectionable.  An  ob- 
jection to  the  form  of  the  question  is  entitled  to  greater  weight 
where  the  interrogatory  assumes  facts  to  have  been  proven  which 
have  not  been  proved,  or  ausAvers  to  have  been  given  different 
from  the  way  in  which  they  were  given,  with  a  view  to  entrap- 
ping the  witness,  or  of  leading  the  mind  of  tlie  witness  to  em- 
brace falsehood  instead  of  truth.  Except  in  certain  cases,  the 
witness  should  be  examined  only  to  matters  of  fact  within  his 
own  knowledge ;  and  as  to  such  matters  he  should  in  general  be 
distinctly  and  directly  interrogated,  leaving  conclusions  to  be 
drawn  from  the  facts  proved  to  the  jury  alone,  or  to  triers  of 
facts.  There  is,  however,  a  certain  class  of  questions  which  in- 
volve skill,  learning,  experience,  and  judgment,  upon  which  ex- 
perts, or  those  that  are  particularly  learned  and  experienced  in 
the  matter,  may  be  examined  as  to  their  opinions  and  belief; 
and  in  such  cases  the  witness  is  allowed  to  state  his  conclusion ; 
but  before  doing  so  he  may  be  examined  as  to  his  experience, 
learning,  fitness,  and  qualification  ;   and  if  the  fact  of  his  being 


380  ECCLESIASTICAL  LAW. 

an  expert  is  questioned,  he  may  be  cross-examined  by  the 
opposite  party  upon  that  point,  before  his  evidence  is  receivable 
with  reference  to  his  inferences  or  conclusions  in  matters  pertain- 
ing to  his  professional  skill.  ^  Under  some  circumstances  leading 
questions  are  allowable  in  a  direct  examination.  Thus,  where 
the  witness  appears  unwilling  to  give  evidence,  or  appears  tp  be 
hostile  to  the  party  producing  him,  or  is  manifestly  in  the  interest 
of  the  other  party,  or  where  an  omission  in  the  witness's  testi- 
mony is  caused  by  the  want  of  recollection  which  a  suggestion 
may  assist,  or  where  the  transaction  involves  numerous  items  or 
dates,  or  where  the  mind  of  the  witness  can  not  be  directed  to 
the  subject  of  inquiry  without  a  particular  reference  to  the  facts, 
direct  questions  are  allowable.  But  in  all  such  cases  the  neces- 
sity for  a  resort  to  this  mode  of  examination  should  first  be  as- 
certained, and  its  nature  judged  of  by  the  manner  of  the  witness 
answering  the  question  and  his  demeanor  on  the  witness-stand. 
Where  a  witness  is  a  party  in  interest  and  is  adverse  to  the  party 
calling  him,  leading  questions,  in  the  nature  of  a  cross-examina- 
tion, may  be  resorted  to  as  a  matter  of  right. 

When  a  witness  has  been  regularly  sworn,  he  is  first,  as  we 
have  previously  said,  examined  by  the  party  calling  him,  after 


^  1  Stark.  Ev.  152 ;  Goodtitle  on  the  Demise  to  Revett  v.  Braham,  4  Terra 
R.  497. 

On  the  question  of  science  or  skill  or  trade,  persons  of  skill  in  those  parti- 
cular departments  are  allowed  to  give  their  opinions  in  evidence;  but  the  rule  is 
confined  to  cases  in  which,  from  the  vorj'  nature  of  the  subject,  facts  discon- 
nected from  such  opinions  can  not  be  so  presented  to  a  jury  as  to  enable  them 
to  pass  upon  a  question  with  the  requisite  knowledge  and  judgment.  Thus,  a 
physician,  in  many  cases,  can  not  so  explain  to  a  jury  the  cause  of  the  death  or 
other  serious  injury  of  an  individual  as  to  make  the  jury  distinctly  perceive  the 
connection  between  the  cause  and  efTect.  He  may,  therefore,  express  an  opin- 
ion that  the  wound  given,  or  the  poison  administered,  produced  the  death  of  the 
deceased.  But  in  such  a  case  the  physician  must  state  the  facts  upon  which  his 
opinion  is  founded.  (1  M'Nally,  B29-:53o;  8  Mass.  371  ;  9  Mass.  325.)  So 
ship-builders  may  give  their  opinions  as  to  the  seawortliiness  of  a  ship  from  ex- 
amining a  survey  or  description  of  the  vessel  made  by  others  when  they  were 
not  present.  This  is  evidently  a  matter  of  mechanical  skill.  (Peako's  N.  P.  C. 
25-43;  1  Campb.  117.)  So  an  engineer  or  an  engraver  may  give  his  opinion 
on  matters  belonging  to  his  particular  science  or  art.  (4  Term,  498;  1  Phillips's 
Ev.  227;  Jefferson  la.  Co.  v.Caiheal,  7  Wendell,  79.)' 


THE  EXAMINATION  OF  WITNESSES.  381 

which  the  other  party  Is  at  liberty  to  cross-examine  him  touching 
all  the  matters  that  he  has  been  examined  upon  in  chief;  and  then 
the  party  who  first  called  him  may  re-examine.  This,  in  strictness, 
closes  the  examination.  The  true  office  of  the  examination  in 
chief  is  to  lay  before  the  court  and  jury,  or  the  committee,  as  the 
case  may  be,  the  entire  information  possessed  by  the  witness  that 
is  relevant  and  material ;  the  office  of  cross-examination  is  to 
search,  correct,  supply  omissions,  and  sift  the  evidence ;  the 
office  of  a  re-examination  is  to  put  in  order,  set  aright,  repair 
and  explain  whatever  has  been  obscured  or  rendered  doubtful  or 
uncertain  by  the  cross-examination. 

The  power  of  cross-examination  is  given  to  afford  one  of  the 
best  securities  against  false  evidence  and  incomplete  or  garbled 
statements.  Great  latitude  is  ordinarily  allowable  in  the  mode 
of  putting  the  questions.  The  rule,  however,  is  restricted  within 
certain  limits  with  respect  to  the  relevancy  of  the  question  to  the 
matters  in  controversy.  Oftentimes  great  care  and  caution  should 
be  exercised  in  conducting  a  cross-examination,  for  it  frequently 
happens  that  defects  and  omissions  in  the  examination  in  chief 
are  brought  out  and  supplied  upon  the  cross-examination.  The 
same  caution  and  prudence  should  also  be  made  use  of  upon  the 
re-examination  ;  the  examiner  should  always  be  careful,  and,  if 
possible,  avoid  putting  the  witness  in  a  hostile  attitude  towards  him. 
Much  more  can  ordinarily  be  gleaned  from  a  witness  by  occupy- 
ing a  friendly  relation  toward  him  and  by  giving  apparent  assent, 
for  the  time  being,  to  the  correctness  of  his  statement. 

We  believe  it  to  be  the  first  duty  of  an  examiner  to  treat  with 
entire  fairness  and  consideration  a  witness  when  he  believes  that 
such  witness  is  testifying  to  the  truth  honestly  and  conscien- 
tiously, always  bearing  in  mind  that  such  a  witness  is  not  upon 
the  witness  stand  volutarily  or  of  his  own  volition,  but  because 
duty  and  the  law  compels  him ;  if,  however,  there  is  good 
reason  to  believe  that  the  witness  is  testifying  recklessly  or  cor- 
ruptly, then  the  best  method  of  exposing  him  and  of  detecting 
the  falsehood  is  to  so  examine  him  as  to  break  up  in  his  mind 
continuity  of  arrangement.  Questions  relevant  and  proper  on 
cross-examination  may  be  asked  in  such  a  manner  as  to  force 
him  to  acknowledge  the  truth  for  fear  of  detection.     Few  wit- 


382  ECCLESIASTICAL  LAW. 


nesses  under  a  rigid  cross-examination  arc  capable  of  fabricating 
falsehood  when  they  are  once  disconcerted  and  thrown  out  of 
their  original  groove.  This,  to  an  unscrupulous  witness,  is  the 
only  substantial  check  that  can  ordinarily  be  imposed. 

Before  entering  upon  cross-examination,  a  preliminary  in- 
quiry may  sometimes  arise  as  to  whether  the  witness  has  so  far 
given  evidence  in  chief  as  to  entitle  the  cross-examination  to  the 
benefit  of  his  testimony.  Thus,  if  a  witness  is  called  by  a  party 
for  the  purpose  merely  of  producing  a  written  instrument  be- 
longing to  the  party  or  in  his  possession,  and  is  not  examined 
with  reference  either  to  the  instrument  or  to  the  circumstances 
connected  with  the  holding  of  such  instrument,  he  will  not  be 
subject  to  cross-examination.^ 

A  witness  can  not,  or  at  least  should  not,  be  cross-examined 
as  to  facts  collateral  and  wholly  irrelevant  to  the  issue  for  the 
purpose  of  laying  the  foundation  for  the  contradiction  of  such 
witness  by  other  evidence  and  in  such  manner  to  discredit  his 
testimony,  and  if  the  witness  answers  such  collateral  or  irrele- 
vant question,  evidence  can  not  afterwards  be  admitted  to  contra- 
dict his  testimony  on  the  collateral  matter.  It  has  been  long 
settled,  however,  tliat  it  is  not  irrelevant  to  ask  a  witness  whether, 
on  some  other  occasion,  designating  in  the  question  the  time, 
place,  and  person  with  whom  he  had  a  conversation,  he  has  not 
given  a  different  and  contrary  account  of  the  same  matter. 
This  rule  is  founded  upon  the  desire  of  the  law  to  deal  fairly 
with  the  witness  by  giving  him  a  full  opportunity  to  recall  the 
conversation  to  his  memory  and  to  explain  it  if  it  is  capable  of 
explanation.  ^ 

^  In  Simj^son  v.  Smith,  Natt's  Summer  Assizes  in  1822,  in  an  action  for 
maliciously  and  without  probable  cause  making  a  charcre  of  felony  before  a 
justice  against  the  plaintiff,  in  causing  him  to  be  apprehended,  the  plaintiff's 
counsel  having  called  upon  the  justice  to  produce  the  inl'ormation  taken  by  him, 
which  was  accordingly  produced,  and  was  proceeding  to  jirove  the  information 
by  the  justice's  clerk,  when  it  was  insisted  by  the  defendant's  counsel  that  he 
should  be  allowed  to  cross-examine  the  justice  who  had  produced  the  informa- 
tion. But  Mr.  Justice  Halroyd  held  that  this  could  not  be  done,  and  that  the 
plaintiflf's  counsel  might  proceed  to  prove  the  information  in  the  regular  man- 
ner.    2  Phillips's  Ev.  G  Am.  from  the  9  London  Ed.  397. 

^  The  right  of  counsel  in  cross-examining  a  witness  to  inquire  into  collateral 


THE  EXAMINATION  OF  WITNESSES.  383 

Whether  a  witness  may  be  inquired  of  on  the  cross-examina- 
tion as  to  whether  he  has  not  attempted  to  dissuade  other  wit- 
nesses examined  on  the  other  side  from  being  present  at  the  trial 
is  a  question  upon  which  the  courts  are  not  uniformly  agreed.  It 
has  been  ruled  in  some  cases  that  such  an  inquiry  is  immaterial 
to  the  issue  ;  that  if  the  Avitness  answered  in  the  negative,  deny- 
ing that  he  had  made  such  attempt,  evidence  to  contradict  him 
on  that  point  would  not  be  admissible.^  Certainly  it  might  be  a 
matter  of  some  importance  whore  there  is  a  conflict  of  evidence 
to  show  that  one  of  the  witnesses  producing  such  conflict  had 
been  guilty  of  a  dishonest  attempt  to  prevent  the  other  from  ap- 
pearing at  the  trial ;  and  in  this  view  it  seems  strictly  relevant 
to  the  matter  in  issue,  and  is  essential  for  the  discovery  of  truth. 
It  has  been  the  constant  practice  to  allow  the  inquiry  to  be  made 
of  a  witness  upon  cross-examination  as  to  whether  the  defendant 
himself  had  attempted  to  induce  the  witness  to  seduce  other 
witnesses  from  appearing  at  the  trial.     And  in  this  view  it  would 

facts  with  a  view  of  discrediting  him,  is  in  the  discretion  of  the  Court  under  all 
the  circumstances  of  the  case.  Allen  v.  Bodine,  G  Barb.  383;  Hoyt\.  Lynch 
2  Sand.  328. 

Before  a  witness  can  be  discredited  by  contradictory  statements,  tlie  occa- 
sion of  the  supposed  conversation  must  be  pointed  out  to  him  with  reasonable 
certainty,  as  by  indicating  the  place,  the  purpose  of  the  interview,  or  other  cir- 
cumstances likely  to  recall  it  to  his  memory.  It  is  not  enough  to  give  the  name 
of  the  person  to  whom  the  statement  was  made.  Pendleton  v.  Empire  Stone 
Dressing  Co.,  19  N.  Y.  13;  S.  C.  19  Law  Rep.  277. 

Gondolfo  V.  Appleton,  40  N.  Y.  In  this  ca.se  it  was  held  that  it  was  inad- 
missible to  impeach  the  defendant's  witness,  as  the  plaintiff  was  bound  by  his 
answer  on  cross-examination  as  to  what  he  had  heard  said  by  a  third  person  not 
a  party  or  witness,  it  being  a  collateral  fact. 

It  is  settled  law  that  a  witness  can  not  be  examined  as  to  any  distinct  col- 
lateral fact  for  the  purpose  of  impeaching  his  testimony  by  contradicting  him. 
(1  Starkie's  Ev.  134;  1  Phillips's  Ev.  21.)  But  if  a  question  relative  to  such 
a  fact  be  put  and  answered,  evidence  can  not  afterwards  be  adduced  for  the  pur- 
pose of  contradiction.  (2  Camp.  638;  2  Starkie's  N.  P.  C.  149;  2  Galli.«on,  53; 
Harris  v.  Wilson,  1  Wend.  62.) 

The  credit  of  a  witness  may  be  impeached  by  proof  that  he  has  made  either 
verbal  or  written  statements  out  of  court  contrary  to  what  he  swears  at  the  trial ; 
provided  he  has  been  previously  cross-examined  as  to  such  alleged  statements, 
and  provided  that  such  statements  are  upon  a  point  material  to  the  question  in 
issue.  Patchin  v.  The  Astor  Mutual  Ins.  Co.,  3  Kernan  268;  Carpenter  v. 
Ward,  30.  N.  Y.  246. 

1  Hairis  v.  Tippet,  2  Campb.  637. 


381  ECCLESIASTICAL  LAW. 

seem  to  us  to  be  material  and  very  near  akin  to  an  admission  hy 
the  witness  of  corruption,  which  would  greatly  weaken,  if  not 
desti'oy,  his  testimony.  On  the  trial  of  Lord  Stafford  for  higli 
treason  before  the  Lord  Chancellor,  proof  was  admitted  on  behalf 
of  the  prisoner  that  one  of  the  witnesses  for  the  prosecution  had 
attempted  to  suborn  other  witnesses  to  give  false  testimony.  If 
a  witness  denies  having  used  the  threat  that  he  would  be  re- 
venged upon  the  prisoner,  it  is  not  irrelevant  to  inquire,  on  cross- 
examination,  whether  he  had  not  made  such  threat;  and  if  the 
witness  denies  it,  then  to  introduce  evidence  to  contradict  him. 
Oftentimes  it  becomes  difficult  for  the  court  to  determine  whetlier 
a  certain  matter  is  so  far  irrelevant  as  to  conclude  the  party  ask- 
ing the  question  on  cross-examination  by  the  answer  of  the  wit- 
ness. In  an  action  on  a  promissory  note,  the  execution  of  which 
was  in  issue,  a  female  servant  of  tiie  plaintiff,  who  Avas  an  attest- 
ing witness,  was  called  by  the  plaintiff  to  prove  the  defendant's 
signature,  being  asked  upon  the  cross-examination  whether  she 
did  not  cohabit  with  the  plaintiff,  denied  the  fact ;  the  defendant 
then  proposed  to  call  a  witness  to  prove  the  fact.  This  testi- 
mony was  objected  to,  and  it  Avas  insisted  that  the  admission  of 
the  evidence  would  only  tend  to  contradict  the  Avitness  on  a  col- 
lateral matter ;  but  the  objection  Avas  overruled  by  Mr,  Justice 
Coleridge,  Avho  is  reported  to  have  said,  ^'Is  it  not  material  to 
the  issue  Avhether  the  material  Avitness  Avho  comes  to  support 
the  plaintiff's  case  is  his  kept  mistress?  If  the  question  had 
been  Avhether  the  witness  had  walked  the  streets  as  a  common 
prostitute,  I  think  that  Avould  have  been  collateral  to  the  issue; 
and  that  if  the  witness  had  denied  such  a  charge,  she  could  not 
have  been  contradicted ;  but  here  tiie  question  is  Avhether  the 
witness  has  contracted  such  a  relation  Avith  the  plaintiff  as  would 
induce  her  the  more  readily  to  conspire  Avith  him  to  support  a 
forgery,  just  in  the  same  way  as  if  she  were  the  sister  or  daughter 
of  the  plaintiff  and  had  denied  the  fact."  The  evidence  Avas  ac- 
cordingly admitted.^ 

A  witness  should  ordinarily  be  permitted  only  to  testify  to 
such  facts  as  are  within  his  own  knowledge.  He  may,  however, 
refresh  his  recollection  and  assist  his  memory  by  tlie  use  of  writ- 

^  Thomas  v.  David,  7  C.  &  P.  350. 


I 


THE  EXAMINATION  OF  WITNESSES.  385 

ten  memoranda  or  entries  in  a  Look,  or  by  reference  to  any  in- 
strument in  writing,  and  he  may  be  compelled,  under  most  cir- 
cumstances, to  do  so  if  tiic  writing  is  present  in  court.  It  is  not 
necessary  tliat  the  writing  should  have  been  made  by  the  witness, 
nor  that  it  should  be  an  original  writing,  provided  after  examina- 
tion of  it  by  the  witness  he  can  speak  to  the  fact  from  liis  own 
independent  recollection.  Where  a  witness  remembers  to  have 
seen  a  paper  which  he  uses  and  identifies  for  the  purpose  of  re- 
freshing his  memory,  and  examined  the  same  while  the  facts  were 
fresh  in  his  recollection,  and  knew  at  the  time  of  making  such  ex- 
amination that  the  facts  therein  stated  were  correctly  set  forth  in 
the  Avriting,  he  may  use  the  writing  to  refresh  his  memory  and 
then  testify  to  such  fact ;  provided  that  the  instrument  used  is 
admissible  in  evidence,  but  if  inadmissible  for  any  cause,  it  niay 
still  be  referred  to  by  the  witness.^  Where  the  witness  does  not 
recollect  the  foct  upon  an  examination  of  the  writing  or  memo- 
randum, nor  remembers  to  have  recognized  the  writing  as  true, 
and  Avhere  the  written  instrument  was  not  made  by  the  Avitness, 
his  testimony,  based  upon  such  writing,  is  not  admissible  in 
evidence. 

Where  a  party  by  the  cross-examination  of  a  witness  obtains 
proof  of  the  handwriting  of  a  paper  shown  to  the  witness,  the 
opposite  party  has  a  right  to  inspect  the  paper  for  the  purpose 
of  examining  the  witness.  By  proving  a  written  instrument  by 
a  witness  to  have  been  properly  executed,  the  party  proving  the 
execution  will  not  be  compelled  to  put  the  writing  in  evidence  ; 
if,  however,  counsel  in  cross-examining  a  witness  puts  a  written 
paper  in  the  witness's  hand  and  then  questions  him  with  reference 
to  it.  and  the  answers  are  such  as  might  have  an  effect  upon  the 

^  The  book  certainly  could  not  be  received  in  evidence  as  a  receipt  for  money 
by  the  defendant,  for  want  of  a  stamp.  In  itself,  indeed,  the  book  having  been 
kept  by  the  plaintiff,  was  no  evidence  at  all  against  the  defendant  to  charge  him 
with  the  items  of  the  account;  but  if  there  had  been  no  signature  added  it  can 
not  be  pretended  but  that  if  the  witness  had  made  use  of  it  to  ask  the  defendant 
whether  he  had  had  such  and  such  articles  contained  in  it,  his  admission  would 
have  been  evidence  against  him,  and  the  witness  might  afterwards  have  re- 
freshed his  memory  at  the  trial  by  referring  to  the  particular  items  to  which  such 
admission  extended  ;  then  if  this  use  might  have  been  made  of  the  book  without 
the  signature,  the  defendant,  by  putting  his  name  to  it,  can  not  make  it  less  evi- 
dence for  the  purpose  for  which  it  was  produced.  Jacob  v.  Lindsay,  1  East,  463. 


386  ECCLESIASTICAL  LAW. 

cause,  the  opposite  party  has  a  right  to  examine  the  paper  or 
writing,  and  to  cross-examine  or  re-examine  the  witness  upon  it; 
but  where  such  examination  or  cross-examination  on  the  paper 
has  entirely  failed,  the  opposite  party  has  no  right  to  see  or  in- 
spect it. 

As  we  liave  previously  shown,  a  considerable  latitude  of  dis- 
cretion is  allowable  in  the  court  or  presiding  officer  in  the  manner 
of  disposing  of  business ;  still  some  rules  of  practice,  and  some 
rules  governing  the  order  of  examination  of  witnesses,  and  the 
manner  of  conducting  such  examination  should  be  inflexibly  ad- 
hered to,  as  experience  has  demonstrated  that  certain  rules  are 
essential  to  the  attainment  of  justice,  and  that  certain  other 
rules  are  essential  aids  in  conducing  to  that  end.  It  seems  to  be 
well  settled  that  where  a  witness  is  called  by  one  party  the  other 
party  has  only  the  right  to  cross-examine  upon  the  facts  to  which 
the  witness  testified  in  his  examination  in  chief.  If  the  other 
party  desires  to  avail  himself  of  the  testimony  of  the  witness  on 
any  other  point  not  brought  out  by  the  examination  in  chief,  he 
should  call  him  at  tlie  proper  time,  and  make  him  his  own  wit- 
ness, giving  to  the  other  party  the  right  of  a  cross-examination 
on  such  evidence  thus  brought  out  in  chief.  If  the  rule  were 
otherwise,  the  party  calling  the  witness  to  establish  ever  so 
trifling  a  question  would  be  deprived  of  a  cross-examination  as 
to  the  evidence  elicited  on  the  other  side;  and  the  party  against 
whom  the  witness  Avas  first  called  could  obtain  the  advantage  of 
acquiring  evidence  in  chief  under  the  latitude  allowed  in  cross- 
examination.^  This  rule,  however,  that  obtains  in  modern  prac- 
tice is  at  variance  witli  the  English  rule.^     Probably  the  rule,  as 


1  Staford  V.  Fargo,  35  111.  48G. 

*  It  is  reported  to  have  been  ruled  at  nisi  prins  that  if  a  witness  has  been 
once  examined  by  a  party,  the  privilege  of  cross-examination  by  the  opposite 
party  continues  in  every  stage  of  the  cause,  so  that  if  ho  should  call  the  same 
witness  to  prove  his  case,  in  reply  he  might  ask  him  leading  questions.  In  the 
case  referred  to,  witness  might  ])ossibly  have  shown  a  stronger  bias  in  favor  of 
the  first  party  that  called  him,  and  on  tiiis  account,  perhaps,  a  greater  scope  was 
granted  than  is  usually  allowed.  But  it  may  happen,  on  the  other  hand  that  the 
party  calls  a  witness  unwillingly  from  necessity,  knowing  him  at  the  time  to  be 
favorable  to  the  opposite  party.  In  such  a  case  to  allow  the  opposite  party  on 
calling  him  afterwards  as  his  own  witness  to  put  leading  questions,  would  be  giv- 
ing him  an  unreasonable  advantage.     In  all  cases  of  this  description  the  mode 


EXAMINATION  OF  WITNESSES.  3S7 

we  have  before  stated  it,  is  subject  to  this  qualification,  tliat 
where  a  witness  who  was  incompetent  to  testify  on  the  ground  of 
interest  has  been  called  and  sworn  in  chief,  the  opposite  party  in 
order  to  obtain  the  full  benefit  may  not  only  cross-examine  him 
in  relation  to  the  point  which  he  has  been  called  to  prove,  but 
he  may,  in  furtherance  of  justice,  examine  him  as  to  any  matter 
embraced  in  the  issue.  If  he  is  a  competent  witness  for  one  pur- 
pose he  is  equally  so  for  all  purposes,  and  the  party  calling  him 
and  availing  himself  of  his  testimony  should  not  be  permitted  to 
object  to  him  on  the  ground  of  incompetency  any  more  than  he 
would  be  permitted  after  calling  a  witness  to  attempt  to  impeach 
his  general  character;  he  is  estopped  from  denying  his  compe- 
tency as  well  as  his  credibility.^ 

All  testimony  in  chief,  and  especially  that  which  tends  to 
establish  any  affirmative  matter  in  favor  of  the  party,  should 
as  far  as  possible  be  introduced  by  the  counsel  opening;  as 
a  brief  and  pertinent  statement  of  the  issue  and  proofs,  or  evi- 
dence proposed  by  the  counsel  entitled  to  begin,  is  always  a  very 
essential  step  in  the  conduct  of  a  trial:  so  on  the  other  hand  mat- 
ters in  defense  or  avoidance  should  properly  be  presented  by  the 
opposing  counsel  in  the  same  way.  Thus,  in  an  action  on  an 
award,  the  plaintiff  having  proved  the  award,  the  defendant's 
counsel  proposed  to  cross-examine  the  plaintiff's  witnesses  to  cer- 
tain facts  which  it  was  insisted  would  defeat  the  award;  this  the 
court  prevented  until  the  counsel  had  opened  the  case  to  the 
jury ;  for  until  this  was  done,  it  was  difficult  to  see  the  rele- 
vancy of  the  testimony,  and  it  often  happens  that  testimony  is 
relevant  at  one  stage  of  a  cause  which  appears  to  be  irrelevant 
at  another.^ 

On  the  primary  examination  of  the  witness,  or,  as  it  is  gener- 
ally called,  his  examination  in  chief,  the  party  calling  him  is 
bound  to  ask  all  material  questions  in  the  first  instance;  for,  in 
strictness,  if  he  omits  this,  it  can  not  be  done  in  reply,  except 
through  the  grace  and  favor  of  the  court ;  for  the  rule  is,  that  no 

of  proceeding  must  be  decided  by  the  judge  in  the  exercise  of  bis  discretion.  2 
Phillip's  Ev.  401. 

'^Morgan  v.  Bridgen,  2  Starkie,  314;  1  Phillips  Ev.  228;  Varich  v.  Jackson, 
2  Wendell,  166;   Fulton  Bank  v.  Stafford,  2  Wendell,  485. 

^  Ellmaker  v.  Buckley,  16  Serg.  &  Rawle,  T2,  77,  78. 


388  ECCLESIASTICAL  LAW. 

new  question  can  ordinarily  be  put  in  reply  unconnected  with  tlie 
subject  of  cross-examination,  and  wliicli  docs  not  tend  to  explain 
it.  If  a  question  as  to  any  material  fact  has  been  omitted  upon 
the  examination  in  chief,  the  usual  course  is  to  suggest  the  ques- 
tion to  the  court,  which  will  exercise  its  discretion  in  putting  it 
or  in  suffering  it  to  be  put  to  the  witness.'  This  rule  is  exem- 
plified in  a  leading  case  where  the  counsel  for  the  crown  having 
by  the  direction  of  the  court  called  witnesses  whose  names  ap- 
peared on  the  back  of  the  indictment,  and  had  them  sworn  to 
give  the  prisoner's  counsel  a  chance  of  cross-examination,  but 
not  examining  them  in  chief,  the  prisoner's  counsel  having  ac- 
cordingly cross-examined  them  lield  that  after  this  the  counsel  for 
the  crown  could  not  examine  them  in  chief,  but  only  by  way  of 
re-examination,  and,  therefore,  must  confine  himself  to  such  facts 
as  arose  out  of  the  cross-examination.^ 

The  presiding  officer  at  a  Church  trial  has  full  power  to  allow 
witnesses  to  be  recalled  for  re-examination  in  any  stage  of  the 
case  before  it  is  finally  disposed  of.  This  is  the  established  rule 
in  both  our  civil  and  criminal  courts,  so  that  in  a  criminal  case 
witnesses  have  been  allowed  after  they  have  left  the  witness  stand 
to  be  recalled  and  re-examined,  even  in  favor  of  the  prosecution 
after  the  close  of  the  prisoner's  defense;  but  where  such  latitude 

1  1  Starkie's  Ev.  150. 

^  Rex  V.  Beezley,  4  Carr.  &  Payne,  218. 

If  the  court  had  any  doubt  as  to  what  a  witness  did  testify,  it  might  be  a 
proper  exercise  of  their  di.scretion  to  call  tlie  witness'and  re-examine  him  as  to 
the  fact,  but  if  they  are  satisfied  that  he  did  not  testify  in  the  manner  alleged  by 
counsel,  they  might  very  properly  refuse  to  let  the  witness  be  re-examined  after 
he  had  ascertained  from  the  charge  of  the  court  the  precise  form  of  words  in 
which  it  was  necessary  to  state  an  admission  of  the  adverse  party  to  make  his 
evidence  decisive  with  the  jury.     Law  v.  Merrills,  G  Wendell,  276. 

A  witness  with  the  consent  of  the  parties  may  be  re-examined  by  the  jury 
after  they  have  retired.     Broion  v.  Cotoell,  12  John.  R.  384. 

The  refusal  to  recall  a  witness  to  relate  his  testimony  after  a  cause  has  been 
summed  up  and  the  jury  charged  is  a.  matter  of  discretion  appertaining  to  the 
court  before  whom  the  trial  is  had,  with  the  exercise  of  which  a  court  of  review 
will  not  interfere.      The  People  v.  Rector,  19  Wendell,  5fii). 

It  rests  in  the  discretion  of  the  court  before  whom  a  trial  is  had,  whether  or 
not  to  permit  the  re-examination  of  a  witness  after  the  lapse  of  a  day,  and  after 
the  examination  of  other  witnesses.  The  Supreme  Court  will  not  interfere  with 
the  exercise  of  such  discretion,  but  in  a  very  flagrant  case.  The  People  v.  Ma- 
iher,  4  Wendell,  231. 


EXAMINATION  OF  WITNESSES.  389 

is  extended,  tlie  prisoner's  counsel  sliould  rej^nlarly  be  allowed  to 
cross-examine  the  witness  again,  and  if  necessary  introduce  other 
and  explanatory  evidence.*  The  same  princi[)lc  is  observed  with 
reference  to  the  conduct  of  the  entire  cause.  As  to  the  restric- 
tion on  evidence  in  reply  to  the  defendant's  case,  the  rule  is  firmly 
established  that  the  prosecution  or  party  complaining  should  not 
be  allowed  to  go  into  new  and  independent  evidence  of  facts, 
which  are  not  in  reply  to  the  facts  brought  out  on  the  part  of  the 
defendant,  but  the  evidence  in  reply  should  bear  directly  or  indi- 
rectly upon  the  subject  matter  of  the  defense,  and  ought  not  to 
consist  of  new  matter,  unconnected  with  the  defense,  and  not 
tending  to  controvert  or  disprove  it.  This  is  the  general  rule 
made  for  the  purpose  of  avoiding  embarrassment,  confusion,  and 
waste  of  time;  but,  as  we  have  previously  said,  it  rests  entirely 
in  the  sound  discretion  of  the  judge  or  presiding  officer,  whether 
it  ought  to  be  strictly  enforced  or  remitted  as  he  may  think  best 
for  the  discovery  of  truth  and  the  administration  of  justice. 

In  a  prosecution  for  larceny  the  case  made  out  on  the  part  of 
the  prosecution  was  that  the  goods  had  been  stolen,  and  Avere 
found  in  the  possession  of  the  defendant.  The  defense  was,  that 
the  daughter  of  the  accused  purchased  the  goods  of  a  third  per- 
son, which  fact  was  proved  by  the  daughter.  The  counsel  for 
the  crown  then  called  the  person  from  whom  the  goods  should 
have  been  purchased,  and  attempted  to  prove  by  him  that  he  had 
seen  the  defendant  steal  the  goods.  This  evidence  was  objected 
to,  because  that  it  should  have  been  introduced  in  chief,  and  the 
court  sustained  the  objection,  and  confined  the  inquiry  to  Avhether 
the  witness  had  sold  the  goods  to  the  prisoner,  Avhich,  if  disproved, 
the  court  said  would  be  an  answer  to  the  defense  set  up  by  the 
accused.^  This  was  certainly  carrying  the  rule  to  the  very 
verge,  as  the  fact  of  proving  that  the  defendant  stole  the  good3 
would  certainly  be  strong  proof  that  he  did  not  buy  them. 


1  Eex  V  Watso7i,  6  C.  &  P.  65.S. 
1  Eex  V.  Simpso7i,  2  C.  &  P.  415. 

26 


390  ECCLESIASTICAL  LAW. 


CHAPTER  III. 

IMPEACHMENT   OF  WITNESSES. 

Before  proceeding  to  the  consideration  of  the  impeachment 
of  a  witness  we  will  call  attention  to  a  rule  recognized  and  firralj 
established  in  the  administration  of  civil  justice ;  and  that  is  this, 
that  a  party  shall  not  be  permitted  to  call  a  witness  and  after- 
wards turn  round  and  attack  the  general  reputation  of  such  wit- 
ness for  truth  and  veracity,  nor,  for  the  purpose  of  impeaching 
such  witness,  show  that  he  has  made  statements  out  of  court  in- 
consistent with  his  testimony  before  the  court. ^ 

There  are  some  exceptions  to  this  rule ;  thus,  Avhere  the  wit- 
ness is  one  which  the  law  makes  it  necessary  for  the  party  to 
call — as  in  the  case  of  a  subscribing  witness  to  a  will  or  deed — 
such  witness  is  not  so  far  considered  as  the  witness  of  the  party 
calling  him  as  to  estop  such  party  from  calling  in  question  his 
character  for  truth ;  but  he  may,  notwithstanding  the  witness  has 
been  called  by  him,  introduce  evidence  to  impeach  his  general 
character  for  truth  and  veracity.^    It  is  clear  from  the  authorities 

^  Although  it  is  a  general  rule  that  a  party  is  not  allowed  to  discredit  his  own 
witness,  yet  that  must  be  understood  to  mean  that  the  witness  is  not  directly  to 
be  impeached  on  account  of  his  cliaracter  for  truth.  But  the  rule  is  by  no  means 
to  extend  so  far  that  a  party  may  not  call  a  witness  to  prove  a  fact  which  a  wit- 
ness previously  called  by  him  has  denied.  A  party  is  not  obliged  to  receive  as 
unimpeached  truth  every  thing  which  a  witness  called  by  him  may  swear  to.  If 
his  witness  has  been  false  or  mistaken  in  his  testimony,  he  may  prove  the  truth 
by  others.     Brown  v.  Bellows,  4  Pick.  194. 

Wldiaker  v.  Salisbuyt/,  15  Pick.  534;  Stockton  v.  Demuth,  1  Watts,  39; 
Smith  V.  Price,  8  Watts,  447  ;  Winston  v.  Mosehj,  2  Lew.  137 ;  Fulton  Bank  v. 
Stafford,  2  Wen.  483;  Friedlander  v.  London  Assurance,  4  B.  &  Ad.  193; 
Ftcer  V.  Amhros,  3  B.  &  C.  746. 

2  We  all  think  that  the  rule  requiring  the  testimony  of  subscribing  witnesses 
to  deeds,  if  to  be  procured,  can  not  be  dispensed  with.  What  it  is  to  be  pre- 
sumed from  their  having  subscribed  as  witnesses  they  would  testify  if  called, 
can  not  be  supplied  by  the  statement  of  the  other  party  or  by  evidence  of  the 
handwriting  of  the  parties  charged.  A^on  constat  from  the  indenture,  produced 
by  the  defendant  himself,  but  that  the  witness  did  see  all  the  parties  execute  the 
same.  The  party  who  would  establish  a  deed  must  lay  his  groundwork  by  the 
production  of  the  subscribing  witnesses,  if  their  testimony  can  be  obtained.  If 
they  fail  to  establish  the  execution  of  it,  the  party  who  thus  called  them  by  a 


IMPEACHMENT  OF  WITNESSES.  391 

that  a  party  calling  a  witness  is  not  precluded  from  proving  tlie 
truth  of  any  particular  fact  by  other  witnesses,  or  by  other  com- 
petent testimony,  even  though  such  testimony  be  in  direct  cou- 
tradiction  to  what  such  witness  may  have  testified ;  and  this  not 
only  where  the  witness  was  innocently  mistaken,  but  the  ruh; 
goes  to  the  extent  of  admitting  such  evidence  where  it  may  have 
the  effect,  collaterally,  of  showing  that  the  witness  was  unworthy 
of  credit. 

There  is  a  conflict  in  the  authorities  on  the  question  whetlicr 
(t  is  competent  to  prove  that  a  witness  whom  a  party  has  called 
has  previously  stated  the  facts  in  a  manner  different  from  the 
statement  that  he  makes  upon  tlie  witness  stand.  Some  courts 
hold  that  a  party  should  not  be  sacrificed  by  a  witness  who  has 
deceived  and  misled  him,  and  that  he  ought  not  to  be  entrapped 
by  the  arts  of  a  designing  Avitness,  such  witness,  perhaps,  being 
in  the  interest  of  the  adverse  part}'.^  The  argument  on  the 
other  hand  is,  that  to  admit  such  evidence  would  be  to  allow  the 
declarations  of  a  witness  to  go  to  the  jury  as  independent  evi- 
dence. The  better  rule,  and  the  one  that  seems  to  be  supported 
by  a  greater  weight  of  authority,  is  in  favor  of  allowing  the 
party  to  show  that  he  has  been  deceived  by  the  statement  of 
the  witness  made  out  of  court,  and  that  the  testimony  takes  him 
by  surprise,  or  that  the  witness  has  been  tampered  with  by  the 
opposite  party,  and  has  been  guilty  of  deceiving  the  party 
calling  hira.^ 

positive  rule  of  law  is  not  to  be  concluded  hj  their  testimony,  but  will  be  per- 
mitted to  establish  the  fact  by  other  evidence.  It  would  be  contrary  to  justice 
that  the  treachery  of  witnesses  should  exclude  a  party  from  establishing  by  the 
aid  of  other  testimony.  1  Starkie  on  Ev.  147;  Whitaker  v.  Salisbury,  15 
Pick.  544. 

When  a  party  calls  a  witness  whose  o;eneral  character  for  truth  is  bad,  he  is 
attempting  to  obtain  his  cause  by  testimony  not  worthy  of  credit.  It  is  to  some 
extent  an  imposition  upon  the  court  and  jury.  The  law  will  not  suppose  that  a 
party  will  do  any  such  thing,  but  will  rather  hold  the  party  calling  the  witness  to 
have  adopted  and  considered  him  as  credible.  If  this  were  not  so,  it  would  be 
in  the  power  of  any  party  merely  by  putting  a  witness  upon  the  stand  to  blacken 
and  defame  his  general  character  for  truth  whenever  the  evidence  should  fall 
short  of  what  was  wanted.     3  Starkie  on  Ev.  1002. 

1  2  Phillip's  Ev.  447. 

'  In  a  recent  case,  this  very  point  has  been  more  fully  considered,  and  it  was 
held  that  if  a  witness  unexpectedly  gives  evidence  adverse  to  the  party  calling 


392  ECCr.ESIASriCAL  LAW, 

There  are  several  modes  of  impeacliinpf  the  credit  of  a  wit- 
ness or  witnesses  called  bj  the  opposite  party,  and  we  will 
briefly  refer  to  them  in  their  order.  The  rule  is  firmly  established, 
that  the  party  against  whom  a  witness  is  called  to  give  testimony 
may  examine  other  witnesses  as  to  the  general  character  of  such 
witness  for  truth  and  veracity  ;  and  that  when  the  general  char- 
acter of  a  witness  is  thus  put  in  issue,  the  party  interested  in  his 
testimony  may  call  other  witnesses  to  sustain  his  character.  At 
first  blush  it  would  seem  that  this  rule,  allowing  a  collateral  issue 
to  be  made  and  tried  over  the  general  character  of  the  witness  is 
a  violation  of  another  rule  of  evidence,  that  is,  that  the  evidence 
must  be  relevant  and  tend  to  enlighten  the  issue.  Tliis  departure 
from  the  rule  that  we  have  just  mentioned  seems  to  be  essential 
to  the  administration  of  justice,  for  all  the  courts  agree  that  if 
the  testimony  of  a  witness  is  not  impeached  in  some  of  the  modes 
known  to  the  law,  it  is  the  duty  of  the  jury,  or  of  the  committee, 
to  believe  it  and  to  act  upon  it.  And  if  there  was  no  mode 
allowable  of  putting  the  general  character  of  the  Avitness  in  issue, 
the  jury  might  as  often  give  credence  to  the  testimony  of  a  man 
whose  reputation  is  notoriously  bad  for  truth  as  to  the  testimony 
of  a  witness  Avhose  reputation  is  good. 

To  impeach  the  credit  of  a  witness,  you  can  only  examine  as 
to  his  general  character  for  truth,  and  can  not  go  into  evidence 
of  particular  facts  which,  if  true,  would  impeach  his  character 
for  veracity.      The  reason  given  by  our  elementary  law  wu'iters 

him,  the  party  may  ask  him  if  he  has  not,  on  a  particular  occasion,  made  a  con- 
trary statement.  And  the  question  and  answer  may  go  to  the  jury  with  the  rest 
of  the  evidence,  the  judge  cautioning  them  not  to  infer  that  the  facts  suggested 
in  it  are  true,  from  the  question  alone.  In  such  case  the  party  who  called  the 
witness  may  still  go  on  to  prove  his  case  by  other  witnesses,  notwithstanding 
tlieir  testimony  relates  to  facts  that  may  contradict,  and  thus  indirectly  discredit, 
the  former  witness.  Thus,  in  an  action  for  assault  and  battery,  if  the  plaintiff's 
first  witness  testifies  that  the  plaintiff  in  conversation  ascribed  the  injury  to  an 
accident,  the  plaintiff  may  prove  that  in  fact  no  such  accident  occurred;  and  if 
the  witness  denies  a  material  fact  and  states  that  the  persons  connected  with 
the  plaintiff  offered  him  money  to  assert  the  fact,  the  plaintiff  may  not  only  go 
on  to  prove  the  fact,  but  he  may  also  disprove  the  subornation;  for  this  latter 
fact  has  now  become  relevant,  though  no  part  of  the  main  transaction,  inasmuch 
as  its  truth  or  falsehood  may  fairly  influence  the  belief  of  the  jury  as  to  the 
whole  case.  Melhuish  v.  Collier,  15  Ad.  &  El.  378  N.  S.  (See  the  Lochlibo, 
1  English  Law  and  Equity.) 


IMPEACHMENT  OF  WITNESSES.  393 

is,  that  every  witness  may  be  supposed  to  come  prepared  with 
evidence  sufficient  to  support  his  general  character,  but  that  it  is 
not  probable  that  he  should  be  prepared  to  answer  to  particular 
facts.  Hence  a  Avitness  can  not  be  asked  to  state  any  particular 
fact  tending  to  impair  the  veracity  of  the  witness  whom  he  was 
called  to  impeach — as  that  he  has  known  the  witness  to  testify 
falsely — for  if  such  evidence  were  allowable  it  might  involve  an 
inquiry  into  the  character  of  the  transaction  and  the  entire  inves- 
tigation of  the  trial  in  which  the  fiilse  evidence  was  alleged  to 
have  been  given ;  which,  besides  being  too  remote,  would  tend  to 
mislead  the  mind  of  the  jury  or  of  the  connnittee  fiom  the  true 
issue  before  them  to  be  tried.  Another  question  in  this  corniec- 
tion  is  worthy  of  consideration ;  that  is,  how  far  the  general 
character  of  the  witness  is  in  issue,  Avhethcr  the  question  may 
be  asked  generally  of  the  impeaching  witness,  or  whether  it 
should  be  restricted  to  an  inquiry  into  the  general  character  of 
the  witness  for  truth  and  veracity.  Our  civil  courts  are  not 
agreed  upon  this  question  ;  some  of  the  courts  contend  that  it  is 
the  province  of  the  jury  to  be  made  acquainted  with  the  charac- 
ter of  the  witness  generally,  so  that  they  may  be  able  to  place  a 
true  estimate  upon  the  value  of  his  testimony,  and  where  his 
character  is  bad  in  one  respect,  it  is  a  correct  legal  inference  that 
it  is  bad  in  all;  hence  the  maxim,  falsus  in  lino  falsus  in  omni- 
btis  ;  that  is  to  say,  a  person  that  is  false  in  one  matter,  is  de- 
ceitful in  eveiy  thing.  ^ 

Probably  the  weight  of  authority  is  in  favor  of  restricting 
the  inquiry  of  the  witness  to  the  question  as  to  the  general  repu- 

^  The  authorities  are  uniform  that  it  is  only  the  general  reputation  of  a  wit- 
ness that  can  be  inquired  into  for  the  purpose  of  impeaching  his  testimony  ;  and 
although  there  is  some  conflict  in  the  decisions  as  to  whether  the  inquiry  should 
be  confined  to  the  general  character  of  the  witness  for  truth  and  veracity,  we 
think  the  better  rule  is  that  it  should  be  so  confined.  The  proper  question  to  be 
put  to  a  witness  called  to  impeach  another  is  whether  he  knows  the  general 
reputation  of  the  person  sought  to  be  impeached  among  his  neighbors  for  truth 
and  veracity.  If  this  question  be  answered  affirmatively,  the  witness  may  then 
be  inquired  of  as  to  what  that  reputation  is,  and  whether  from  that  reputation 
he  would  believe  him  on  oath.  Mobley  v.  Hammit,  1  A.  K.  Marsh.  .')8!l ;  The 
People  V  Butter,  VJ  Wendell,  578  ;  The  United  Stales  v.  Van  Sickle,  2  M'Lenn, 
219;  Fardv.  Ford,  7  Humph.  100;  The  People  v.  Mather,  -4  Wendell,  257; 
1  Starkie  on  Evidence,  182;  11  Metcalf,  538;  Fry  v.  The  Bank  of  Illinois,  et 
al.  11  Ills.  37y. 


394  ECCLESIASTICAL  LAW. 


tation  of  the  Avitness  for  truth  and  veracity.  Tlie  reason  for 
thus  restricting  it  as  given  is  that  tliere  are  many  witnesses 
whose  general  character  among  their  neiglibors  might  be  es- 
teemed bad,  yet  they  are  scrupulously  honest  upon  the  witness 
stand,  and  their  general  reputation  for  truth  is  good,  and  for  the 
further  reason  that  it  is  only  their  character  for  truth  that  is  in- 
volved in  the  issue  upon  which  the  jury  or  committee  are  called 
to  pass.  The  regular  mode  of  examining  into  the  general  repu- 
tation of  the  witness  is  to  inquire  whether  ho  knows  the  gen- 
eral reputation  of  the  person  in  question  among  his  neighbors  and 
acquaintances  for  truth  and  veracity,  and,  if  that  question  is 
answered  affirmatively,  then  the  witness  may  be  asked,  what  that 
reputation  is,  whether  good  or  bad. 

In  the  English  courts  and  in  the  courts  of  a  number  of  the 
States  where  the  answer  of  the  witness  is  that  he  knows  the  general 
reputation  of  the  person,  and  that  his  general  reputation  is  bad, 
then  a  further  inquiry  may  be  made  as  to  whether  from  such 
knowledge  the  witness  would  believe  the  person  upon  oath.  The 
propriety  of  this  question  has  been  recently  questioned  on  the 
ground  that  it  is  having  the  witness  assume  the  province  of  the 
jury,  in  passing  upon  the  weight  of  evidence,  for  it  Avill  be  ob- 
served tiiat  the  inquiry  is  restricted  to  the  belief  of  the  witness, 
founded  upon  general  reputation,  and  not  upon  his  own  personal 
knowledge,  and  when  he  has  testified  before  the  jury  or  committee 
they  are  as  fully  competent  to  draw  their  conclusions  from  the 
evidence  as  the  witness,  and  it  may  now  be  safely  assumed,  both 
on  principle  and  the  weight  of  authority  tiiat  the  witness  should 
not  be  permitted  to  give  his  own  opinion,  but  his  testimony 
should  be  confined  to  a  statement  of  facts.  One  of  the  most 
difficult  questions  that  the  legal  profession  meet  with  in  practice 
under  this  head  is  to  make  witnesses  comprehend  the  nature  and 
character  of  the  knowledge  that  they  must  be  possessed  of,  in 
order  to  be  able  to  testify  that  they  are  acquainted  with  the  gen- 
eral character  of  the  person;  and  they  often  confound  tlieir  own 
knowledge  of  facts  and  their  own  estimate  of  the  character  of  the 
person  with  what  they  have  heard  others  say.  They  can  not 
understand  how  it  is  that  hearsay  evidence  is  rejected  as  un- 
worthy of  belief  generally,  and  yet  in  this  respect  the  entire  in- 
quiry is  restricted  to  and  based  upon  public  rumor,  or  what  is 


IMPEACHMENT  OF  WITNESSES.  395 

said  by  the  majority  of  a  man's  neighbors  that  have  spoken 
about  him  in  this  respect.  The  principle  upon  wliich  this  testi- 
mony is  admitted  is,  that  the  general  sense  and  appreciation  of 
every  community  is  substantially  correct,  and  that  men  do  not 
ordinarily  speak  evil  of  others  without  just  cause. ^  It  is  not 
enough  that  the  impeaching  witness  has  heard  the  person's  repu- 
tation canvassed,  but  he  must  be  able  to  state  what  is  generally 
said  of  the  person  among  those  with  whom  he  dwells,  or  with 
those  with  whom  he  is  chiefly  conversant ;  for  it  is  this  only  that 
constitutes  his  general  reputation  or  character. 

An  exception  to  this  rule  authorizing  the  impeachment  of  a  wit- 
ness on  account  of  his  general  character  for  truth  and  veracity 
being  bad  is  made  in  favor  of  members  of  the  Church.  Such 
was  the  decision  of  the  General  Conference  in  1860,  and  such  is 
the  rule  laid  down  by  Baker  on  Discipline."  In  answer  to  gen- 
eral impeaching  evidence,  the  other  party  may  in  cross-examina- 
tion inquire  particularly  into  the  witnesses'  means  of  knowledge, 
and  the  evidence  upon  which  they  base  their  opinion.  The 
inquiry  upon  a  cross-examination  may  be  made  as  to  the  names 
of  the  persons  who  had  spoken  against  the  character  of  the  Avit- 
ness  impeached,  and  also  as  to  the  statements  made  by  such  per- 
sons and  the  circumstances  under  which  such  statements  were 
made,  and  the  time,  whether  before  or  after  lis  mota,  or  the  com- 
mencement of  the  suit  or  proceeding.'     Mr.  Greenleaf  also  lays 


^  It  is  not  enough  that  the  impeaching  witness  merely  states  what  he  has 
heard  others  say,  for  they  may  be  few;  he  must  be  able  to  state  what  is  gener- 
ally said  of  the  person  by  those  among  whom  he  associates,  and  by  whom  he  is 
known,  for  it  is  this  only  that  constitutes  his  general  reputation  or  character. 
And  it  is  error  to  permit  the  impeaching  witness  to  speak  to  the  general  char- 
acter unless  he  is  acquainted  with  such  general  character.  Crahtree  v.  Kile 
et  al,  21  111.  188. 

^  In  impeaching  the  character  of  a  witness  in  the  second  mode  it  is  not 
allowable  to  impeach  his  general  moral  character,  but  his  general  character  for 
veracity,  and  that  not  by  producing  testimony  of  particular  facts  of  bad  moral 
conduct,  but  by  producing  testimony  as  to  the  general  fact  of  his  unreliability 
as  a  person  of  veracity.  Gen.  Conf.  Jour.,  1860,  p.  428  ;  Baker  on  Discipline,  128. 
The  general  character  of  a  member  of  our  Church  for  veracity  can  not  be 
impeached,  but  the  facts  stated  therein  may  be  disproved  by  the  testimony  of 
other  witnesses.     Ibid.  129. 

^  Upon  this  point,  there  is  a  difference  of  opinion  among  tlie  members  of  this 
court;  but  in  the  opinion  of  a  majority,  the  inquiry,  upon  a  cross-e.xumination 


39G  ECCLESIASTICAL  LAW. 

down  the  rule  tliat  the  party  whose  witness  is  attacked  may  in 
turn  attack  the  character  of  the  impeaching  witnesses ;  and  au- 
thority for  this  practice  seems  to  be  based  on  the  decision  in  the 
case  of  Ilatvsou  v.  Hartsinh:^  yet,  notwithstanding  this  high  au- 
thority, we  think  that  upon  principle  such  evidence  is  too  irrele- 
vant to  be  admissible ;  for  if  the  rule  is  to  be  extended  to  the 
impeachment  of  the  impeaching  witnesses,  it  is  without  limit,  and 
the  multiplicity  of  irrelevant  and  improper  issues  will  mislead 
and  perplex  without  any  profitable  result,  either  to  the  witness 
attempted  to  be  impeached  or  to  the  party  in  whose  favor  he  has 
testified.^  There  is  no  doubt  that  it  is  the  right  of  a  party 
whose  witness  has  been  impeached,  or  attempted  to  be  impeached, 
to  sustain  and  support  the  general  character  of  such  witness  by 
fresh  evidence.  The  supporting  evidence  should,  however,  come 
from  witnesses  that  are  acquainted  with  the  person  whose  testi- 
mony is  attempted  to  be  impeached,  and  with  the  general  char- 
acter of  such  person ;  but  that  general  acquaintance  is  not  nec- 
essarily founded  upon  his  character  having  been  previously 
canvassed  for  truth  and  veracity ;  for  it  is  a  fact  borne  out  by 
the  experience  of  every  community,  that  the  character  of  men 
whose  reputation  is  good,  is  seldom  canvassed  or  called  in  question, 
and  they  are  judged  of  from  this  fact  by  their  acquaintance  more 

as  to  the  names  of  the  persons  who  liave  spoken  against  the  character  of  the 
witness  impeached,  was  well  warranted  by  principle,  by  the  course  of  practice, 
and  by  the  authorities.  According  to  the  impression  and  recollection  of  a  ma- 
jority of  the  Court  it  has  been  common  in  the  course  of  practice  to  make  such 
inquiry  upon  cross-examination.  In  point  of  principle  it  would  seem  proper  to 
make  this  inquiry,  because  the  witness  is  called  on  to  state  what  is  the  reputation 
of  the  person  impeached,  what  is  his  character  for  truth  by  report,  what  is  said 
of  his  character  for  truth;  and  it  may  be  very  material  and  important  to  know 
from  whom  in  particular  the  reports  come,  and  what  persons  they  were  who 
spoke  against  the  character  of  the  person  impeached.  Upon  such  inquiry  it 
may  appear  that  all  the  persons  from  whom  the  witness  has  heard  any  thing 
against  the  person  impeached  are  his  personal  enemies,  and  so  situated  in  re- 
gard to  him  that  their  speech  and  reports  are  entitled  to  no  consideration  what- 
ever. The  inquiry  may  also  be  proper  in  order  to  test  the  extent  and  means  of 
information  possessed  by  the  witness  in  regard  to  the  character  of  the  party  im- 
peached for  truth  and  veracity.  By  allowing  such  inquiry  it  may  perhaps  be 
made  to  appear  that  the  imputed  bad  character  is  wholly  factitious,  and  got  up 
for  a  particular  purpose.     Bates  v.  Barber,  4  Cushing,  109. 

'  4  Esp.  1 04,  per  Lord  Ellenborough  ;  2  Phillips's  Ev.  432 ;  1  Starkie's  Ev.  182. 

*8ee  Rector  v.  Hector  et  at.  3  Oilman,  117. 


IMPEACHMENT  OF  WITNESSES.  397 

than  from  any  statements  that  may  have  been  made  favorable 
to  them.^ 

If  a  person  is  known  to  associate  with  others  of  reputation, 
character,  and  standing  in  a  community',  this  of  itself  is  strong 
presumptive  evidence  that  the  reputation  of  such  person  is  good, 
and  this  fact  may  be  taken  into  the  account  by  the  witness  when 
he  answers  that  he  knows  the  general  reputation  of  such  person, 
and  that  too,  although  he  may  never  have  heard  a  word  spoken 
either  favorable  or  unfavorable  of  such  person. 

The  veracity  of  a  witness  may  also  be  called  in  question  and 
impaired  by  evidence  that  he  has  made  statements  out  of  court 
contrary  to  those  to  which  he  has  testified  at  the  trial  ;  but,  as 
we  have  previously  seen,  he  can  only  be  involved  in  contradic- 
tion upon  such  matters  as  are  relevant  to  the  issue ;  and  even 
before  this  is  allowable,  it  is  ordinarily  necessary,  in  the  case  of 
verbal  statements,  first  to  call  his  attention  to  the  time,  place, 
and  person  connected  with  the  supposed  contradiction:  and  to  ask 
the  general  question  whether  he  has  ever  made  such  statement  is 
not  enough,  because  it  may  frequently  happen  that  he  can  not 

^  It  is  urged  that  the  Court  erred  in  permitting  the  question  to  be  put  to  a 
witness  called  to  sustain  tlie  credit  of  anotlier  whetlier  he  would  believe  him  on 
oath,  after  an  admission  that  he  had  never  heard  his  character  for  truth  and  ve- 
racity spoken  of,  but  who  had  previously  answered  that  he  knew  the  witness,  and 
the  persons  with  whom  he  associated.  I  am  of  the  opinion  that  the  question  was 
properly  admitted.  If  such  a  question  was  not  permitted,  the  most  repectable 
man  in  the  community  might  fail  in  being  supported,  if  his  character  for  truth 
should  happen  to  be  attacked.  Living  all  his  life  above  suspicion,  his  truth 
would  rarely  be  the  subject  of  remark.  A  neighbor  might  be  obliged  to  admit, 
as  in  this  case,  that  he  had  never  heard  it  spoken  of,  and  yet  undoubtedly  be 
competent  to  sustain  him.  The  question  is  accurately  and  comprehensively 
stated  by  Mr.  Phillips  in  his  treatise  on  the  Law  of  Evidence  (Vol.  i,  page.  212, 
ch.  8).  The  regular  mode,  he  observes,  is  to  inquire  whether  they  have  the 
means  of  knowing  the  former  witness's  general  character,  and  whether  from  such 
knowledge  they  would  believe  him  on  his  oath.  Other  modes  are  also  proper, 
which  point  the  question  directly  to  the  character  for  truth  and  veracity.  Mr- 
Starkie  goes  still  further  and  expresses  the  opinion  that  the  proper  question  is 
whether  he  [witness]  would  believe  him  upon  his  oath,  leaving  to  the  cross-ex- 
amination to  bring  out  the  general  grounds  of  belief*  The  answer  to  the  pre- 
vious questions  in  the  case  before  us  fairly  imported  competent  means  of  know- 
ing the  character  of  the  witness  to  be  supported,  to  bring  it  within  the  spirit  of 
Mr.  Phillips's  rule.      The  People  v.  Davis,  21  Wendell,  315. 

■■MCarr.  &  Payne,  392. 


39S  ECCLESIASTICAL  LAW. 

remember  the  fact  unless  his  attention  is  challenged  or  directed 
to  the  particular  occasion  and  to  the  surrounding  circumstances 
that  lead  to  the  making  of  such  statements.^  This  rule  that  re- 
quires the  attention  of  the  witness  to  be  directed  to  the  time, 
place,  and  person,  is  as  applicable  where  the  witness  testifies  by 
deposition  and  where  the  supposed  contradiction  is  by  letter,  as 
■where  both  the  testimony  and  the  statement  made  out  of  court 
were  oral ;  in  one  case,  however,  it  was  held  that  where  the  dep- 
osition of  the  witness  had  been  taken  ex  i^arte  and  without  notice, 
that  the  rule  was  otherwise,  and  that  evidence  of  the  contradic- 
tion was  admissible.^ 

The  question  has  sometimes  arisen — and  we  have  befoi'e  in- 
cidentally referred  to  it — hoflr  far  or  to  what  extent  a  witness 
who  has  been  impeached  by  showing  that  he  made  contradictory 
statements  out  of  court  that  were  inconsistent  with  his  testimony, 
may  introduce  evidence  of  other  declarations  made  at  different 

^  The  rule  is  well  settled  in  England,  that  a  witness  can  not  be  impeached  by 
showing  that  he  has  made  contradictory  statements  from  those  sworn  to  unless 
on  his  examination  he  was  asked  wliether  he  had  not  made  such  statements  to 
the  individuals  by  whom  the  proof  was  expected  to  be  given.*  This  rule  is 
founded  upon  common  sense,  and  is  essential  to  protect  the  character  of  a  wit- 
ness; his  memory  is  refreshed  by  the  necessary  inquiries  which  enable  him  to 
explain  the  statements  referred  to,  and  show  that  they  were  made  under  a  mis- 
take, or  that  there  was  no  discrepancy  between  them  and  his  testimony.  Conrad 
V.  Grrffey,  21  Curtis,  24. 

This  rule  is  generally  established  in  this  country  as  in  England.  {Doe  v. 
Reagn,  5  Blf.  217  ;  Franklin  Bank  v.  Steam  Navigation  O).  1 1  Gill  &  John.  28; 
Palmer  v.  Haight,  2  Barb.  S.  C.  R.  213;  1  M'Lean,  .540;  2  ihid.  325;  A  ibid. 
378,  381  ;  Jenkins  v.  Eldridge,  3  Story,  181,  284;  Kimhle  v.  Davis,  19  Wen- 
derll,  437  ;  25  ibid.  259.)  The  declarations  of  witnesses  whose  testimony  has 
been  taken  under  a  commission,  made  subsequent  to  the  taking  of  their  testi- 
mony, contradicting  or  invalidating  their  testimony  as  contained  in  the  deposi- 
tions, are  inadmissible.  If  objected  to,  the  only  way  for  the  party  to  avail 
himself  of  such  declarations  is  to  sue  out  a  second  commission.  Such  evidence 
is  always  inadmissible  until  the  witness  whose  testimony  is  thus  sought  to  be 
impeached  has  been  examined  upon  the  point  and  his  attention  particularly  di- 
rected to  the  circumstances  of  the  transaction,  so  as  to  furnish  him  an  oppor- 
tunity for  explanation  or  exculpation.  This  rule  equally  applies  whether  the 
declaration  of  the  witness  supposed  to  contradict  his  testimony  be  written  or 
verbal.     3  Starkie's  Ev.  1741. 

^M' Kinney  v.  Neil,  1  M'Lean,  540. 

*>  In  the  Quoen's  case,  2  Rrod.  &  I^inR.  S12  ;  August  v.  Smith,  1  Moody  k  Miilkin,  473  ;  3  Star- 
kie's Ev.  1740,  175;j,  1754;  Carpenter  v.  Wall,  U  Adol.  &  VAVis,  803. 


IMPEACHMENT  OF  WITNESSES.  399 

times  tending  to  corroborate  him.  We  think  that  the  decided 
preponderance  of  authority  is  opposed  to  receiving  such  con- 
firmatory declarations  where  the  same  are  made  without  being 
under  oath.^  This  is  especially  true  where  the  confirmatory 
evidence  is  made  subsequent  to  his  other  contradictory  declara- 
tions; for  if  such  evidence  was  receivable,  it  would  enable  the 
witness  at  any  time  to  control  the  effect  of  his  former  declara- 
tions, which  he  was  conscious  that  he  had  made  and  which  he 
might  now  have  a  motive  to  qualify  or  destroy. 

Where  a  witness  on  the  cross-examination  is  asked  by  coun- 
sel whether  he  has  not,  on  some  former  occasion,  given  a  different 
statement  contradictory  to  his  testimony,  for  the  purpose  of  lay- 
ing the  foundation  for  his  impeachment,  can  leading  questions  be 
put  to  the  impeaching  witness  upon  his  examination  in  chief? 
Thus,  can  he  be  asked,  in  the  first  instance,  whether  the  former 
witness,  in  conversing  with  him,  made  such  statement  or  used 
such  language?  This  form  of  putting  the  question  is  often  re- 
sorted to,  and  to  some  extent  has  received  the  sanction  of  the 
nisi  prills  courts.  A  little  reflection  will,  however,  show  that 
such  form  of  question  is  improper  ;  for,  in  the  first  place,  it  must 
evidently  be  unnecessary  to  lead  the  witness,  because  the  mind 
of  the  witness  is  ordinarily  challenged  to  the  circumstances  of 
the  conversation  and  to  the  statement  itself  by  the  cross-exami- 


^  It  is  true  that  in  Lutterel  v.  Reynell.,  1  Mod.  Rep.  282,  it  was  held  that 
though  hearsay  be  not  allowed  as  direct  evidence,  yet  it  may  be  admitted  in 
corroboration  of  a  witness's  testimony  to  show  that  he  affirmed  the  same  thing 
upon  other  occasions,  and  that  he  is  still  constant  to  himself.  Lord  Chief  Baron 
Gilbert  has  asserted  the  same  opinion  in  his  treatise  on  evidence  (page  135); 
but  Mr.  Justice  Buller,  in  his  nisi  prius  treatise  (page  294),  says:  "  But  clearly 
it  is  not  evidence  in  chief,  and  it  seems  doubtful  whether  it  is  so  in  reply  or  not." 
The  same  question  came  before  the  House  of  Lords  in  the  Berkeley  Peerage 
Case  (4  Campbell,  401),  and  it  was  there  said  by  Lord  Redesdale  that  he  had 
always  understood  that  for  the  purpose  of  impugning  the  testimony  of  a  witness, 
his  testimony  at  another  time  might  be  inquired  into,  but  not  for  the  purpose  of 
confirming  his  evidence.  Lord  Eldon  expressed  his  decided  opinion  that  this 
was  the  true  rule  to  be  observed  by  the  counsel  in  the  cause.  Lord  Chief-Justice 
Eyre  is  also  represented  to  have  rejected  such  evidence  when  offered  on  the  be- 
half of  the  defendant  in  a  prosecution  for  forgery.  (1  Phillips  on  Evidence,  215, 
note ;  230,  note.)  We  think  that  this  is  not  only  the  better  but  the  true  opinion, 
and  well  founded  on  the  general  principles  of  evidence.  Elliot  v.  Pearly  12 
Curtis,  18fi. 


400  ECCLESIASTICAL  LAW. 


nation  of  the  former  witness  and  from  having  conversed  Avith 
either  the  examiner  or  the  opposite  party  before  the  cross-exami- 
nation. The  better  practice  is  to  inquire  generally  what  the 
former  witness  said  relative  to  the  transaction,  and  thus  leave  him 
to  the  exercise  of  his  own  memory.  Where  the  witness  has  a 
distinct  recollection  of  the  conversation,  he  requires  only  to  have 
his  attention  directed  to  the  subject ;  and  if  his  recollection  is  so 
indistinct  that  a  general  question  Avill  not  enable  him  to  remem- 
ber the  conversation  he  is  but  poorly  qualified  to  contradict  the 
other  witness.  It  seems  to  us  that  there  is  nothing  in  the  nature 
of  this  particular  class  of  investigation  that  ought  to  exempt  it 
from  the  general  rule  governing  examinations  in  chief.  If  there 
is  any  case  in  which  that  general  rule  that  prohibits  the  asking 
of  leading  questions  ought  to  be  strictly  maintained,  it  is  the  one 
now  under  consideration,  where  the  question  at  issue  between  the 
two  witnesses  is  a  question  of  veracity  or  of  mere  memory.  If 
it  is  a  question  of  memory,  the  only  correct  practice  is  to  allow 
the  witness  to  speak  for  himself  and  to  exercise  his  own  memory 
without  prompting.  It  may  be  proper,  however,  after  the  wit- 
ness has  answered  the  general  question  and  has  shown  the  con- 
tradiction, for  the  purpose  of  making  the  contradiction  more 
complete,  to  inquire  whether  the  former  witness  has  or  has  not 
used  the  expression  imputed  to  him.^ 

Where  the  witness  to  be  impeached  has  his  attention  called 
to  the  time,  place,  and  person  involved  in  the  supposed  contradic- 
tion on  the  cross-examination  says  that  he  does  not  remember, 
but  that  he  may  have  made  the  statement,  such  answer  does  not 
preclude  the  opposite  party  from  calling  witnesses  and  proving 
that  he  did  make  such  statement.  If  the  rule  was  otherwise, 
an  unscrupulous  witness  might  always  avoid  the  effect  of  an  im- 
peachment by  such  an  answer,^ 


^  Edmunds  v.  Walters,  3  Stark.  C:i.  8;  1  Campbell,  43;  Halleck  v.  Cousens, 
2  M.  &  R.  239. 

^  If  the  witness  does  not  recollect  the  conversation  imputed  to  him,  it  may  be 
proved  by  atiother  witness,  provided  it  is  relevant  to  the  matter  in  issue  (Crow- 
ley V.  Page,  7  C.  &  P.  789,  per  Park,  B.);  but  if  he  is  asked  upon  cross-exami- 
nation if  he  will  swear  that  he  has  not  said  so  and  so,  and  he  answers  that  he 
will  not  swear  that  he  has  not,  the  party  can  not  be  called  to  contradict  him. 
Lang  v.  Hitchcock,  9  C.  &  P.  619. 


IMPEACHMENT  OF  WITNESSES.  401 

Counsel  •will  not  be  pennittccl  to  state  to  a  witness  the  con- 
tents of  a  letter  or  other  writing,  and  then  ask  the  witness  whether 
he  wrote  the  same  :  but  he  should  be  required  in  fairness  to  show 
the  letter  or  writing  to  the  witness  ;  for  the  contents  of  every 
writing,  according  to  a  well  established  principle  of  evidence,  are 
to  be  proved  by  the  writing  itself,  provided  tliat  the  same  is  in 
existence.  If  the  rule  were  otherwise,  a  party  might  succeed  in 
getting  a  part  of  the  writing  in  evidence  without  putting  the 
whole  instrument  in  evidence  before  the  jury  or  committee.  It  is 
not  required  that  the  whole  paper  or  Avriting  should  be  shown  to 
the  witness  ;  it  is  sufficient  if  those  parts  of  it  are  shown  upon 
which  the  examination  takes  place.  Where  a  witness  admits  the 
instrument  to  be  his  writing  he  can  not  be  examined  as  to  the 
contents  of  it,  but  the  whole  instrument  must  be  read  as  the  only 
competent  evidence  of  the  fact.  The  rules  of  evidence  will  not 
permit  a  witness  to  be  asked  on  examination  whether  he  has 
written  a  particular  thing,  but  the  writing  should  be  placed  into 
his  hands,  and  then  he  may  be  examined  as  to  whether  it  is  his 
writing.  If  a  question  be  asked  a  witness  generally,  whetlier  he 
has  made  certain  statements,  the  examiner  asking  the  question, 
on  objection  being  made,  will  be  required  to  state  whether  the 
question  refers  to  oral  or  written  statements,  and  if  it  refers  to 
written  statements  the  answer  will  be  excluded,  unless  the  writing 
is  produced.^  We  have  previously  seen  that  where  a  witness  is 
asked  an  irrelevant  question  with  a  view  to  lay  the  foundation 
for  his  contradiction,  that  the  party  asking  such  irrelevant 
question  is  concluded  by  his  answer  and  can  not  introduce 
evidence  of  the  supposed  contradiction.  The  party  calling 
the  witness,  however,  where  he  has  made  answer  to  such 
irrelevant  question,  has  a  right  to  re-examine  him  as  to  the 
evidence  so  given. 

When  evidence  of  a  contradictory  character  has  been  offered, 
such  as  that  the  witness  has  made  statements  out  of  court  which 
are  inconsistent  with  his  testimony,  with  a  view  of  impeaching 
his  general  character,  or  showing  that  his  statements  are  unwor- 
thy of  belief,  some  of  the  courts  have  held  that  this  put  his  gen- 
eral character  in  issue,  and  that  he  was  entitled  to  sustain  it  by 

1  The  Queen's  Case,  2  Brod.  &  Bing.  292-294. 


402  ECCLESIASTICAL  LAW. 

showing  that  his  reputation  for  truth  and  veracity  was  good. 
{Bex  V.  ClarJc.)^  We  have  had  occasion  to  examine  that  case, 
and  find  that  it  is  not  an  authority  in  support  of  that  position,  and 
it  is  certainly  at  war  with  every  principle  of  the  law  of  evidence. 
However  good  a  man's  general  reputation  may  be,  and  however 
much  in  public  estimation  he  may  be  regarded  as  having  a  scru- 
pulous regard  for  truth,  this  does  not  avoid  the  effect  of  the 
discrepancy  between  his  different  statements  where  once  that 
discrepancy  is  proved  to  exist.  ^ 


CHAPTER  IV. 

WHEN   A    WITNESS   MAY   REFUSE   TO    ANSWER. 

A  WITNESS  is  not  compelled  by  law  to  answer  any  question, 
the  answering  of  which  tends  to  expose  him,  or  which  may  ex- 
pose him  to  any  kind  of  punishment  or  forfeiture,  or  which  may 
even  lead  to  a  criminal  charge.  The  rule  may  be  stated  thus 
broadly,  that  he  is  privileged  from  answering  not  only  what  may 
criminate  him  directly,  but  also  whatever  leads  or  tends  to  crim- 
inate him.     This  is  a  privilege  that  is  secured  by  the  Magna 


^  2  Starkie  has  been  cited  as  an  authority  sustaining  that  position. 

^  The  general  rule  laid  down  in  1  Greenleaf  s  Evidence,  6th  ed.  469,  that  by 
the  evidence  of  contradictory  statements  of  a  witness,  or  of  the  fact  that  he  has 
been  in  the  house  of  correction,  or  the  like,  his  general  character  for  truth  is  in 
some  sort  put  in  issue,  and  general  evidence  may  be  adduced,  is  not  supported 
by  the  cases  there  cited;  for  Rex  v.  Clark,  2  Stark.  R.  241,  which  is  the  founda- 
tion of  the  dicta  in  the  text-books,  is  a  case  of  a  rape,  and  not  law  as  applied  to 
any  other  cases.  Payne  v.  Tilden,  20  Verm.  564,  and  Stoeei  v.  Sherman,  21 
Verm.  20,  state  the  rule  as  the  law  of  Vermont  only  and  Hadgo  v.  Gooden,  13 
Ala.  718,  was  decided  by  a  court  which  held  to  the  rule  in  2  Brod.  &  Bing.  297- 
Professor  Greenleaf 's  rule  is  opposed  by  the  current  of  the  English  authorities, 
though  the  English  courts  have  made  an  exception  in  the  case  of  witnesses  at- 
tempted to  be  impeached  for  fraudulent  attestations,  where  the  witnesses  are 
dead.  Bishop  of  Durham  v.  Beaumont,  1  Campb.  207;  Doe  v.  Walker,  4  Esp. 
R.  50;  Doe  v.  Stephenson,  3  Esp.  R.  248;  Provis  v.  Reed,  5  Bing.  4.35.  It  is 
also  in  conflict  with  the  decisions  of  this  Court  in  Rtissell  v.  Coffin,  and  with 
the  laws  held  in  Connecticut,  New  York,  and  Georgia,  Rodgers  v.  Moore,  10 
Conn.  13;  Meriam  v.  The  Hartford  N.  II.  R.  R.  Co..  20  Conn.  354;  The  Peo- 
ple v.  Ihilse,  3  Hill,  309;  Stark  v.  The  People,  5  Denio,  106;  The  People  v. 
Ga;/,  3  Soldon,  378;  Stamper  v.  Grifjin,  12  Georgia,  450;  The  People  v.  Rector, 
19  Wendell,  569. 


WHEN  A  WITNESS  MAY  REFUSE  TO  ANSWER.  403 

Cliarta  and  by  the  Bill  of  Rights  in  probably  every  State  in  the 
Union,  and  the  reason  is,  if  the  rule  were  othenvise,  question 
after  question  might  be  successively  put  to  the  witness,  the  an- 
swer to  which  might  not  directly  criminate  him,  and  yet  enough 
might  be  gleaned  whereon  to  found  against  him  a  criminal 
charge.^  It  is  to  some  extent  the  province  of  the  court  to  decide 
whether  a  proposed  question  has  a  tendency  to  criminate  a  wit- 
ness, and  it  is  also  the  duty  of  the  court  to  protect  the  witness  in 
the  due  exercise  of  his  privilege,  and  to  take  care  that  the  ex- 
amination is  not  so  conducted  as  to  deprive  him  of  this  privilege. 
Often  it  becomes  a  very  delicate  and  difficult  task  for  the  court  to 
decide  whether  a  certain  question  is  privileged  on  this  account  or 
whether  under  the  pretense  of  the  witness  guarding  himself  he 
may  not  screen  others  from  justice,  or  withhold  evidence  that 
might  be  properly  given.  To  a  certain  extent,  in  such  case,  the 
witness  must  himself  judge  what  his  answer  will  be;  and  if  he 
says  on  oath  that  he  can  not  answer  without  accusing  himself, 
and  the  court  are  satisfied  of  the  fact,  or  even  have  doubts  with 
reference  to  the  facts  he  Avill  not  be  compelled  to  answer.^  This 
rule  is  well  illustrated  by  a  trial  before  Lord  Tenterden  on  an 
indictment  for  publishing  a  libel.  The  prosecution,  after  proving 
that  the  libel  .was  printed  at  the  defendant's  request,  called  the 
defendant's  clerk  and  asked  him  whether  he  wrote  it.  Lord  Ten- 
terden, C.  J.,  said,  "  He  is  not  bound  to  answer."  The  counsel 
for  the  prosecution  then  asked  the  witness,  "Do  you  know 
who  did  write  it?"  The  Court  held  that  the  question  was  com- 
petent, and  the  question  was  answered  affirmatively.  He  was 
then  asked  "to  name  the  person,"  the  Court  held  ''that  he  was 
not  bound  to  do  that  because  it  might  be  himself."^  The  priv- 
ilege, for  such  it  is  regarded,  is  not  the  privilege  of  the  party 
against  whom  the  evidence  is  offered,  but  it  belongs  to  the  wit- 
ness, and  has  its  foundation  in  a  principle  of  natural  justice. 
The  right  to  refuse  to  answer  is  one  of  self-defense.  Every  man 
has  the  right  to  defend  himself  against  a  criminal  charge,  and  no 
man  can  be  compelled  to  be  accessory  to  his  own  ruin,  or  to 

1  Swift  V.  Swift,  4  Hag.  Ec.  CI.  154;  Paxton  v.  Douglas,  19  Ves.  227 ;  Clay- 
ridge  V.  Boare,  14  Ves.  50. 

'U.  S  y.  Burr,  1  Rob.  R.  207,  8,  242-245. 
^  Rex  V.  Slaiieg,  5  Can-.  &  Payne,  213. 


404  ECCLESIASTICAL  LAW. 

expose  himself  to  a  criminal  charge,  or  even  to  a  forfeiture  by 
giving  evidence.  A  witness  may,  however,  waive  his  privilege 
and  answer  at  his  peril,  but  where  he  consents  to  do  so,  he  will 
not  be  at  liberty  to  answer  some  questions  and  refuse  to  answer 
otliers.  It  would  be  unreasonable  that  he  should  be  allowed,  by 
any  arbitrary  use  of  his  privilege,  to  make  a  partial  or  garbled 
statement  to  the  prejudice  of  either  party ;  but  where  a  witness 
waives  his  privilege  so  far  as  to  answer  part  of  the  questions 
tending  to  fix  a  crime  upon  himself,  or  subjecting  him  to  an  in- 
dictment, he  can  not  avoid  answering  the  remainder,  but  must 
give  the  whole  truth.  ^ 

CHAPTER  V. 

PRESUMPTION   IN   FAVOR   OF   WITNESSES'   VERACITY. 

"VVe  have  incidentally  referred  to  the  fact  that  it  was  the  duty 
of  the  jury  or  of  a  committee  empaneled  or  appointed  for  the 
purpose  of  investigating  disputed  facts,  where  the  testimony  of  a 
witness  is  unimpeached  or  unconti'adicted  in  some  one  of  the 
modes  known  to  the  law,  to  give  credit  or  credence  to  such  tes- 
timony, the  presumption  of  law  being  in  favor  of  innocence  and 
in  favor  of  the  veracity  of  the  witness.  A  jury  or  a  committee 
can  not,  from  mere  caprice,  entirely  disregard  the  testimony  of 
an  unimpeached  witness;  although  tliey  are  the  judges  of  the 
credibility  of  witnesses,  they  must  judge  of  credibility  as  they 
judge  of  any  other  fact — that  is,  from  the  evidence.  Before  they 
are  warranted  to  discredit  a  witness  they  must  have  some  ground 
for  disbelieving  him ;  in  other  words,  they  must  exercise  their 
judgment  and  not  their  will.^    If  the  rule  of  law  were  otherwise, 

1  Dixon  V.  Yale,  1  C.  &  P.  279;  Austin  v.  Painer,  1  Simons,  348. 

2  Itohertson  v.  Dodge,  28  Ills.  162. 

It  is  difficult  to  estaljlish  a  rule  which  shall  regulate  and  limit  the  discretion 
of  a  court  or  jury  in  the  degree  of  credit  to  be  given  to  the  testimony  of  differ- 
ent witnesses.  Much  must  depend  on  the  particular  circumstances  of  each  case. 
But  there  is  no  difficulty  in  saying  that  where  the  witness  is  unimpeached,  the 
facts  sworn  to  by  him  uncontradicted  either  directly  or  indirectly  by  other  wit- 
nesses, and  there  is  no  intrinsic  improbability  in  the  relation  given  by  him, 
neither  a  court  nor  jury  can,  in  the  exercise  of  a  sound  discretion,  disregard  his 
testimony.  It  is  no  less  the  duty  of  a  court  than  of  a  jury  to  decide  according 
to  evidence.     But  it  is  mockery  to  talk  of  evidence  if  it  is  discretionary  with  the 


PRESUMPTION  IN  FAVOR  OF  WITNESSES'  VERACITY.       405 

it  would  be  difficult  to  see  upon  wliat  principle  facts  could  be 
judicially  established.  If  the  testimony  of  a  witness  required 
corroboration  before  he  is  worthy  of  belief,  then  the  corroborating 
witness,  in  turn,  Avould  require  corroboration.  Tiiis  rule  of  law 
is  not  peculiar  to  judicial  investigations,  but  is  acted  upon  in 
every  day's  transactions  between  man  and  man.  The  greate  t 
portion  of  our  information  is  derived  from  others,  and  we  are  so 
happily  constituted  that  our  inclination  and  propensity  is  to  speak 
the  truth.  This  principle  has  a  powerful  operation  even  in  men 
of  the  least  veracity.  They  speak  the  truth  at  least  fifty  times 
to  Avhere  they  lie  once.  It  requires  no  art  or  no  previous  disci- 
pline or  training,  but  we  yield  to  truth  as  a  natural  impulse. 
Men  learn  to  speak  falsely  and  to  dissemble.  Truth  requires  no 
previous  education,  but  lies  at  the  door  of  the  lips  ready  to  come 
forth,  and  it  proceeds  from  neither  good  nor  bad  intention,  but 
only  from  simple  artlessness.^ 

tribunal  to  wliich  it  is  addressed  to  disregard  it  upon  the  vague  suggestion,  un- 
suj)ported  by  proof,  of  the  bias  of  the  witness.  Newton  v.  Pape^  1  Cowen,  110. 
^  Tlie  wise  and  beneficent  Author  of  Nature,  who  intended  that  we  should  be 
social  creatures  and  that  we  should  receive  the  greatest  and  most  important  part 
of  our  knowledge  by  the  information  of  others,  hath,  for  these  purposes,  im- 
planted in  our  natures  two  principles  that  tally  with  each  other.  The  first  of 
these  principles  is  a  propensity  to  speak  truth  and  to  use  the  signs  of  language 
so  as  to  convey  our  real  sentiments.  This  principle  has  a  powerful  operation 
even  in  the  greatest  liars,  for  where  they  lie  once  they  speak  truth  a  hundred 
times.  Truth  is  always  uppermost,  and  is  the  natural  issue  of  the  mind.  It  re- 
quires no  art  or  training,  no  inducement  or  temptation,  but  only  that  we  yield 
to  a  natural  impulse.  Lying,  on  the  contrary,  is  doing  violence  to  our  nature, 
and  is  never  practiced,  even  by  the  worst  men,  without  some  temptation.  Speak- 
ing truth  is  like  using  our  natural  food,  which  we  would  do  from  appetite,  al- 
though it  answered  no  end;  but  lying  is  like  taking  physic,  which  is  nauseous  to 
the  taste,  and  which  no  man  takes  but  for  some  end  which  he  can  not  otherwise 
attain.  If  it  should  be  objected  that  men  may  be  influenced  by  moral  or  politi- 
cal considerations  to  speak  truth,  and  therefore  that  their  doing  so  is  no  proof  of 
such  an  original  principle  as  we  have  mentioned,  I  answer,  first,  that  moral  or 
political  considerations  can  have  no  influence  until  we  arrive  at  years  of  under- 
standing and  reflection;  and  it  is  certain,  from  experience,  that  children  keep  to 
truth  invariably  before  they  are  capable  of  being  influenced  by  such  considera- 
tions. Secondly,  when  we  are  influenced  by  moral  or  political  considerations 
we  must  be  conscious  of  that  influence  and  capable  of  perceiving  it  upon  reflec- 
tion. Now,  when  I  reflect  upon  my  actions  most  attentively,  I  am  not  conscious 
that  in  speaking  truth  I  am  influenced,  on  ordinary  occasions,  by  any  motive, 
moral  or  political.     I  find  that  truth  is  always  at  the  door  of  mv  lips,  and  goes 

27 


406  ECCLESIASTICAL  LAW. 

The  apparent  and  actual  conflict  that  often  takes  place  in  the 
testimony  of  different  witnesses,  or  of  the  same  witness  at  differ- 
ent times,  as  is  observable  in  our  courts  of  justice,  often  leads  to 
reflections  upon  the  integrity  and  veracity  of  witnesses ;  and 
those  conflicts  are  often  unjustly  imputed  to  corrupt  and  un- 
worthy motives,  prompted  either  by  prejudice,  partiality,  or  the 
desire  for  gain.  That  these  considerations  do  often  have  a  power- 
ful influence  upon  the  mind  is  not  doubted  ;  but  prejudice  or  par- 
tiality, or  even  the  love  of  gain,  may  be  an  innocent  passion  so 
long  as  its  possessor  is  unconscious  of  its  existence ;  it  is  only 

forth  spontaneously  if  not  held  back.  It  requires  neither  good  nor  bad  inten- 
tion to  bring  it  forth,  but  only  that  I  be  artless  and  undesigning.  There  may, 
indeed,  be  temptations  to  falsehood  which  would  be  too  strong  for  the  natural 
principle  of  veracity,  unaided  by  principles  of  honor  or  virtue;  bnt  where  there 
is  no  such  temptation  we  speak  truth  by  instinct,  and  this  instinct  is  the  princi- 
ple I  have  been  explaining.  By  this  instinct  a  real  connection  is  formed  be- 
tween our  words  and  our  thoughts,  and  thereby  the  former  become  fit  to  be  signs 
of  the  latter,  which  they  conld  not  otherwise  be.  And  although  this  connection 
is  broken  in  every  instance  of  lying  and  equivocation,  yet  these  instances  being 
comparatively  few,  the  authority  of  human  testimony  is  only  weakened  by  them, 
but  not  destroyed.  Another  original  principle  implanted  in  us  by  the  Supreme 
Being  is  to  confide  in  the  veracity  of  others  and  to  believe  what  they  tell  us. 
This  is  the  counterpart  to  the  former,  and  as  that  may  be  called  the  principle  of 
veracity,  we  shall,  for  the  want  of  a  more  proper  name,  call  this  the  principle  of 
credulity.  It  is  unlimited  in  children  until  they  meet  with  instances  of  deceit  and 
falsehood;  and  it  retains  a  very  considerable  degree  of  strength  through  life. 
If  nature  had  left  the  mind  of  the  speaker  in  (eqvilibrio,  without  any  incHnation 
to  the  side  of  truth  more  than  to  that  of  falsehood,  children  would  lie  as  often  as 
they  speak  the  truth  until  reason  was  so  far  ripened  as  to  suggest  the  impru- 
dence of  lying,  or  conscience  as  to  suggest  its  immorality.  And  if  nature  had 
left  the  mind  of  the  hearer  in  ceqnilibrio,  without  any  inclination  to  the  side  of 
belief  more  than  to  that  of  disbelief,  we  should  take  no  man's  word  until  we  had 
positive  evidence  that  he  spoke  truth.  His  testimony  would,  in  this  case,  have 
no  more  authority  than  his  dreams,  which  may  be  true  or  false,  but  no  man  is 
disposed  to  believe  them  on  this  account,  that  they  were  dreamed.  It  is  evident 
that  in  the  matter  of  testimony  the  balance  of  human  judgment  is  by  nature  in- 
clined to  the  side  of  belief,  and  turns  to  that  side  of  itself  when  there  is  nothing 
put  into  the  opposite  scale.  If  it  was  not  so,  no  proposition  that  is  uttered  in 
discourse  would  be  believed  until  it  was  e.vamined  and  tried  by  reason,  and  most 
men  would  be  unable  to  find  reasons  for  believing  the  thousandth  part  of  what 
is  told  them.  Such  distrust  and  incredulity  would  deprive  us  of  the  greatest 
benefits  of  society  and  place  us  in  a  worse  condition  than  that  of  savages. 
Children,  on  this  supposition,  would  be  absolutely  incredulous,  and  therefore  ab- 
solutely incapable  of  instruction ;   those  who  had  little  knowledge  of  human  life 


TRESUMPTION  IN  FAVOR  OF  WITNESSES'  VERACITY.       407 

when  he  becomes  conscious  and  when  he  permits  it  to  liavc  an 
undue  influence  over  him  that  it  becomes  corruption.  Formerly 
a  witness  Avas  competent  to  testify  though  he  might  be  ever  so 
biased  or  pi'ejudiced  in  favor  of  the  party  calHng  liim  ;  yet  it 
was  different  where  he  was  shown  by  some  of  the  knoAvn  and 
recognized  rules  of  evidence  to  have  a  direct  legal  interest  in  the 
result  of  the  investigation.  In  the  former,  his  bias  went  only  to 
affect  his  credibility  ;  in  the  latter,  he  was  wholly  disqualified 
and  adjudged  to  be  legally  incompetent  for  the  reason,  as  the  law 
then  stood,  that  under  the  powerful  influence  of  pecuniary  gain 


and  of  the  manners  and  characters  of  men,  would  be  in  the  next  degree  in- 
credulous ;  and  the  most  credulous  men  would  be  those  of  greatest  experience 
and  of  the  deepest  penetration,  because  in  many  cases  they  would  be  able  to  find 
good  reasons  for  believing  testimony  which  the  weak  and  the  ignorant  could  not 
discover.  In  a  word,  if  credulity  were  the  effect  of  reasoning  and  experience, 
it  must  grow  up  and  gather  strength  in  the  same  proportion  as  reason  and  ex- 
perience do;  but  if  it  is  the  gift  of  nature,  it  will  be  strongest  in  childhood  and 
limited  and  restrained  by  experience;  and  the  most  superficial  view  of  human 
life  shows  that  the  last  is  really  the  case,  nnd  not  the  first.  It  is  the  intention 
of  nature  that  we  should  be  carried  in  arms  until  we  are  able  to  walk  upon  our 
legs;  and  it  is  likewise  the  intention  of  nature  that  our  belief  should  be  guided 
by  the  authority  and  reason  of  others  before  it  can  be  guided  by  our  own  rea.son. 
The  weakness  of  the  infant  and  the  natural  affection  of  the  mother  plainly  indi- 
cate the  former,  and  the  natural  credulity  of  youth  and  authority  of  age  as 
plainly  indicate  the  latter.  The  infant,  by  proper  nursing  and  care,  acquires 
strength  to  walk  without  support.  Reason  hath  likewise  her  infancy  when  she  must 
be  carried  in  arms;  then  she  leans  entirely  upon  authority,  by  natural  instinct, 
as  if  she  was  conscious  of  her  own  weakness,  and  without  this  support  she 
becomes  vertiginous.  When  brought  to  maturity  by  proper  culture  she  be- 
gins to  feel  her  own  strength  and  leans  less  upon  the  reason  of  others ;  she 
learns  to  suspect  testimony  in  some  cases  and  to  disbelieve  it  in  others,  and  sets 
bounds  to  that  authority  to  which  she  was  at  first  entirely  subject;  but  still,  to 
the  end  of  life,  she  finds  a  necessity  of  borrowing  light  from  testimony  where 
she  has  none  within  herself,  and  of  leaning  in  some  degree  upon  the  reason  of 
others  where  she  is  conscious  of  her  own  imbecility.  And  as,  in  many  instances, 
Reason,  even  in  her  maturity,  borrows  aid  from  testimony,  so  in  others  she  mu- 
tually gives  aid  to  it  and  strengthens  its  authority ;  for  as  we  find  good  reason 
to  reject  testimony  in  some  cases,  so  in  others  we  find  good  reason  to  rely  upon 
it  with  perfect  security  in  our  most  important  concerns.  The  character,  the 
number,  and  the  disinterestedness  of  witnesses,  the  impossibility  of  collusion, 
and  the  incredibility  of  their  concurring  in  their  testimony  without  collusion,  may 
give  an  irrisistiljle  strength  to  testimonj^,  compared  to  which  its  native  and  in- 
trinsic authority  is  very  inconsiderable.  Dr.  Reid's  "Inquiry  into  the  Human 
Mind,"  Chapter  G,  §  24,  pp.  428-434. 


408  ECCLESIASTICAL  LAW. 


or  loss,  he  was  adjudged  by  the  law  to  be  more  likely  to  speak 
falsely  than  to  depose  to  the  truth.  The  conflict  of  testimony 
being  then  but  imperfectly  understood,  was  imputed  to  corrupt 
motives,  and  wherever  a  motive  strong  enough  in  contemplation 
(if  law  could  be  found  to  induce  the  proposed  result,  the  witness 
was  adjudged  incompetent.  When  a  change  was  proposed  some 
of  the  best  legal  minds,  both  in  England  and  in  this  country, 
doubted  the  propriety  of  the  change.  The  change  has  been 
made,  however,  in  our  civil  tribunals  with  gratifying  results. 
There  are  te-day  no  greater  conflicts  in  the  testimony  of  wit- 
nesses in  our  judicial  investigations  than  there  was  before  the  old 
rule  of  exclusion  had  been  set  aside. 

As  we  have  previously  said,  and  may  have  occasion  to  say 
again,  the  law  can  not,  and  does  not,  profess  to  set  up  an  infalli- 
ble test  for  the  ascertainment  of  truth,  but  simplj-  aims  to  arrive 
as  nearly  as  possible  at  what  is  truth.  Experience  has  shown 
that  the  old  rule  of  incompetency  was  founded  upon  a  mistaken 
idea  in  ascribing  the  conflict  of  testimony  to  a  corrupt  and  venal 
motive,  while  in  point  of  fact  the  number  of  witnesses  Avho  will- 
fully depose  to  falsehood  are  comparatively  few ;  not  but  that 
there  are  differences  in  the  testimony  of  witnesses  deposing  to  the 
same  facts,  and  differences  that  it  is  sometimes  hard  to  reconcile 
and.  harmonize,  consistent  with  the  credit  and  veracity  of  the 
witness  or  witnesses  ;  yet  such  differences  are  often  more  ap- 
parent than  real,  and  have  their  foundation  in  the  capacity  of  the 
witness  to  observe,  the  strength,  certainty,  and  tenacity  of  mem- 
ory, and  the  ability  of  the  witness  to  communicate  his  thoughts 
and  ideas  to  others. 

In  addition  to  this  it  is  proper  to  take  into  account  the  bias 
and  interest  of  the  witness,  not  with  a  view  of  impeaching  his 
integrity,  but  for  the  purpose  of  making  allowances  for  the  pecu- 
liar training  of  the  mind  when  directed  in  the  channels  of  bias, 
prejudice,  or  interest.  It  is  a  fact  demonstrated  by  scientists 
upon  psychological  principles,  and  borne  out  by  the  experience 
of  courts  and  the  legal  profession,  as  well  as  by  the  observations 
of  others,  that  an  individual  may  so  accustom  himself  to  reason 
or  think,  that  a  matter  which  he  knew  in  the  beginning  was 
false,  by  continuously  revolving  it  in  his  mind,  he  comes  to  be- 
lieve to  be   true.     This  is  in  accordance  with  the  theory  of  a 


PRESUMPTION  IN  FAVOR  OF  WITNESSES'  VERACITY.       409 

certain  sect  who  enforce  tlie  doctrine  of  passive  belief  to  that  ex- 
tent, that  their  followers  are  required  to  believe  their  statements, 
however  false  and  absurd,  even  to  the  contradiction  of  an  express 
mathematical  axiom  that  two  and  five  make  four.  In  all  this 
class  of  departure  from  the  truth,  the  crime  or  offense  consists 
not  in  the  statement  of  the  falsehood,  but  in  the  statement  of  such 
falsehood  willfully  and  corruptly  made. 

The  discussion  of  this  question  more  properly  belongs  to  a 
treatise  founded  upon  the  peculiarities  of  the  human  mind  than 
to  a  work  on  ecclesiastical  law,  but  the  one  is  so  intimately  and 
inseparably  connected  with  the  other,  that  we  have  seen  proper 
to  make  a  brief  allusion  to  it  in  this  connection,  for  the  purpose 
of  inducing  reflection  and  investigation,  founded  upon  the  law 
of  charity.  There  is  in  this  respect,  as  we  maintain,  a  mistaken 
notion  extant,  that  a  thing  may  be  wrong  and  sinful  without  any 
reference  to  the  motive  or  intent.  There  are  wrongs  without  sin. 
Sin  consists  in  the  intent  or  motive  with  which  an  act  is  done, 
or  even  the  entertaining  of  the  motive  without  the  doing  of  the 
act.  Wrong  consists  in  doing  the  act  without  regard  to  the  mo- 
tive; and  they  may  converge  and  diverge,  unite  and  separate. 
This  distinction,  though  sometimes  lost  sight  of  in  the  law, 
is  fully  borne  out  with  reference  to  the  crime  of  perjury,  the 
most  heinous  of  all  crimes  known  to  the  law.  In  order  to  consti- 
tute this  crime,  two  things  must  concur;  first,  falsity  of  state- 
ment with  reference  to  a  material  matter,  secondly,  a  knowledge 
that  the  statement  is  false  at  the  time  it  is  deposed  to.  ^  A  person 
might  very  honestly  and  conscientiously  swear  to  a  particular 
fact  to  the  best  of  his  recollection  and  belief,  and  his  testimony 

^  The  crime  of  perjury  is  tbe  taking  of  a  willful,  false  oatli  by  one  who  being 
lawfully  required  to  depose  the  truth  in  any  judicial  ])roceediiig,  swears  abso- 
lately  in  a  matter  material  to  the  point  in  question.  The  oath  must  not  only  be 
willfully  false,  but  it  must  be  material  to  the  issue.  For  if  it  be  of  no  import- 
ance and  immaterial,  though  false,  it  is  not  perjury,  because  it  does  not  affect  the 
issue,  and  it  lies  upon  the  prosecutor  to  prove  that  it  is  thus  material.  And  it  is 
also  necessary  that  it  should  be  alleged  in  the  indictment  that  the  matter  sworn 
to  and  upon  which  the  perjury  was  assigned  should  be  sufficient  in  themselves  to 
establish  the  materiality.  4  Bl.  Com.  187;  The  Kim/  v.  Dou-Uny,  ."i  T.  R.  311; 
Commomcealth  v.  Knight,  12  Mass.  274;  3  Starkie's  Ev.  1143;  The  King  v. 
Pendergasf,  Gebb's  Cr.  Case,  G4;  Roscoe's  Criminal  Ev.  2  ed.  7t)l;  Laston'a 
Case,  2  Rol.  Rep.  41;  CommomoeaWi  v.  Pollard,  12  Metcalf,  22S,  229. 


410 


ECCLESIASTICAL  LAW. 


may  be  wrong  and  produce  a  wrong  result,  and  yet  he  may  be 
entirely  free  from  moral  wrong;  and  he  may  make  such  state- 
ment and  afterwards  from  a  chain  of  circumstances  be  convinced 
that  he  was  wi'ong,  and  swear  to  the  reverse  of  what  he  has  pre- 
viously testified  to  without  meaning  to  swear  falsely  at  either 
time. 

The  very  fact,  under  such  circumstances,  of  his  correcting 
his  first  testimony  when  he  becomes  satisfied  that  it  was  false,  is 
strong  proof  in  favor  of  his  sincerity  and  motive  to  tell  the  truth; 
were  it  otherwise  he  would  naturally  persist  in  the  falsehood, 
unless  he  changed  his  statement  in  order  to  avoid  subsequent 
contradiction.  The  rule  is,  and  it  is  one  founded  on  humanity 
and  charity,  that  in  order  to  reconcile  testimony  that  is  conflict- 
ing, we  should  endeavor  to  do  so  if  possible  without  imputing 
corrupt  motives  to  the  witness,  for  so  grave  a  crime  should  not 
be  charged  unless  such  charge  can  be  made  out  beyond  a  reason- 
able doubt. 

In  determining  the  weight  of  evidence  in  a  given  case  where 
there  is  conflicting  testimony,  often  a  slight  preponderance  one 
way  or  the  other  is  sufficient  to  support  the  verdict  of  a  jury  or 
the  findings  of  a  committee  ;  but  on  a  trial  for  perjury,  the  per- 
jury assigned  must  be  established  by  tAvo  witnesses,  or  by  one 
witness  and  proof  of  other  corroborating  facts  and  circum- 
stances in  support  of  the  evidence  of  such  witness,  so  loath  is 
the  law  to  conclude  that  the  crime  has  been  committed — a  crime 
easily  charged  but  hard  to  be  made  out.  This  rule,  requiring 
two  witnesses  instead  of  one  as  in  ordinary  cases,  has  probably 
another  logical  reason  upon  which  it  rests,  and  that  is,  if  there 
were  but  one  witness  to  prove  the  falsity  of  the  charge,  it  would 
be  simply  to  oppose  one  oath  to  another,^  and  it  leaves  the  ques- 
tion doubtful  on  which  side  the  truth  lies,  and  under  such  circum- 
stances the  jury  are  ordinarily  bound  to  acquit ;  but  like  all  other 
general  rules,  this  rule  may  have  its  exceptions.  The  exceptions, 
however,  serve  but  to  illustrate  and  show  the  value  and  fitness  of 


^  Sergeant  Hawkins  slates  it  as  llie  law,  tliat  it  seems  to  be  agreed  that  two 
witnesses  are  rer|uired  in  proof  of  tlie  crime  of  perjury,  but  the  taking  of  the 
oath  and  the  facts  deposed  to  may  be  proved  l)y  one  witness  only,  and  he  is  sup- 
ported by  modern  works  of  authority.  2  Hawk.  c.  40,  g  10;  Roscoe  Crim.  Ev. 
(2d  ed.)  770;   1  M'Naliy  on  Ev.  37. 


THE  RIGHT  TO  OPEN  AND  CLOSE.  411 

the  rule.  One  of  tlie  exceptions  tliat  is  sometimes  recognized  is 
where  the  evidence  consists  of  the  contradictory  oaths  of  the 
party  accused.  Thus,  where  depositions  or  affidavits  contrary  to 
each  other  have  been  emitted  in  the  same  matter  by  the  same 
person,  it  may,  with  certainty,  be  conchided  that  one  or  the  other 
is  false.  Tiiis,  of  course,  is  to  be  taken  Avith  the  qualification 
that  the  accused  or  the  party  uttering  such  falsehood  at  the  time 
of  making  such  deposition,  knew  what  the  truth  was,  and  know- 
ingly testified  falsely  and  where  the  probability  of  mistake  is 
expressly  negatived  by  the  defendant  himself,  and  the  corrupt 
motive  disclosed  by  his  own  voluntary  oath.  It  differs  from  a 
case  of  voluntary  oaths  where  there  is  nothing  upon  the  face  of 
either  of  the  oaths  upon  which  peijury  can  be  assigned ;  for 
under  such  circumstances  it  is  the  duty  of  the  public  prosecutor 
to  specify  distinctly  which  of  the  two  contains  the  falsehood,  and 
peril  his  case  upon  the  means  he  has  of  proving  the  perjury. 

Where  a  defendant  has  been  indicted  for  perjury  and  has 
made  contradictory  oaths  or  depositions,  he  can  not  be  permitted 
to  allege  in  vindication  that  either  of  the  depositions  were  false, 
for  whichever  of  them  is  given  in  evidence  to  disprove  the  other 
it  can  hardly  be  in  the  defendant's  mouth  to  deny  the  truth  of  that 
evidence  as  it  came  from  himself;  provided  that  enough  appear, 
either  in  the  evidence  used  to  establish  the  perjury  or  by  proof 
of  other  facts  and  circumstances,  to  show  a  corrupt  motive  and 
negative  the  probability  of  mistake  in  that  on  which  the  perjury 
is  assigned. 

With  this  brief  reference  to  the  elementary  principles  of 
the  law  of  evidence  as  applied  in  our  civil  courts,  we  will 
close  this  branch  of  investigation. 


CHAPTER  VI. 

THE   RIGHT   TO    OPEN   AND    CLOSE. 

After  the  evidence  in  chief  has  been  introduced  by  the  pros- 
ecution, and  the  defendant  has  adduced  his  evidence,  and  the 
plaintiff  has  replied  to  the  new  evidence  introduced  by  the  de- 
fendant, the  cause  has  progressed  to  that  point  in  which  the 
parties  are  each  entitled  to  present  to  the  jury  or  the  committee 


412  ECCLESIASTICAL  LAW. 


their  respective  theories,  based  upon  the  evidence — for  counsel 
should  never  be  permitted  to  present  an  argument  that  has  no 
foundation  in  the  facts  proved.  As  we  have  previously  said, 
whether  there  is  any  evidence  is  a  question  for  the  determination 
of  the  court  or  the  presiding  officer ;  whether  the  evidence  is  suf- 
ficient to  establish  the  complaint  or  the  defense  is  for  the  con- 
sideration of  the  jury  or  committee.  It  is  also  the  province  of 
each  party  to  argue  all  questions  relevant  and  pertinent  to  the 
issue,  and  the  evidence  tending  to  support  the  theory  of  each 
particular  party.  Care  should  be  observed,  however,  in  doing 
so,  and  especially  in  a  Church  investigation,  that  counsel  should 
keep  within  the  record — that  is,  they  should  carefully  avoid  the 
statement  of  any  facts  to  the  committee  with  a  view  of  influ- 
encing their  determination  that  have  not  been  proven.  More 
caution  is  required  in  reference  to  this  particular  point  than 
almost  any  other  arising  in  the  course  of  judicial  investigation. 
It  is  so  easy  for  an  artful  and  skilled  advocate  to  blend  mere 
statements  of  facts  that  are  not  proven  with  the  evidence  in  the 
case,  and  to  confound  the  one  Avith  the  other  in  the  minds  of  the 
committee,  that  the  presiding  officer  can  not  be  too  strict  and 
rigid  in  the  enforcement  of  this  rule.  In  laying  down  this  rule, 
however,  we  do  not  design  to  be  understood  as  restricting  the 
argument  of  counsel  to  such  a  degree  as  to  exclude  illustrations,  or 
as  to  prevent  all  just  and  fair  comparisons. 

It  often  becomes  an  important  question,  to  be  determined  by 
the  presiding  officer,  as  to  who  shall  be  entitled  to  open  and  close 
the  argument.  We  have  previously  said,  while  considering  the 
rules  of  evidence  and  the  party  upon  whom  the  burden  of  proof 
is  devolved,  that  the  party  holding  the  affirmative  of  the  issue, 
whether  complainant  or  defendant,  is  entitled  to  begin  and  also  to 
close  the  evidence  ;  the  same  rule  obtains  with  reference  to  the 
order  of  argument.  It  frequently  happens  that  the  defendant 
assumes,  or  is  compelled  to  assume — owing  to  the  peculiarities 
of  the  case — the  burthen  of  proof.  Thus,  where  the  defendant 
has  met  the  whole  case  with  an  affirmative  plea,  or  where  the 
defendant  has  admitted  the  prima  facie  case  made  or  to  be  made 
out  by  the  plaintiff,  it  has  been  settled  in  England,  by  rule 
adopted  by  the  fifteen  judges,  that  the  plaintiff  shall  begin  in  all 
actions  for  personal  injuries,  libel,  and  slander,  though  the  general 


THE  RIGHT  TO  OPEN  AND  CLOSE.  413 

issue  may  not  be  pleaded  and  the  affirmative  be  upon  tlie  defend- 
ant. In  case  of  plea  of  soil  and  freehold  tendered  by  the  de- 
fendant, and  on  which  issue  was  joined  and  trial  had,  there  being 
no  other  plea  or  issue,  the  court  were  all  clear  that  the  right  of 
opening  and  closing  the  argument  belonged  to  the  defendant.  By 
such  a  plea  the  defendant  admits  the  act  complained  of  as  a  tres- 
pass, and  undertakes  to  prove  the  property  of  the  soil  in  him- 
self; he  has  the  affirmative,  and  if  he  fails  to  make  it  out,  the 
verdict  must  be  against  him.^  The  question,  however,  as  to  who 
is  entitled  to  open  and  close  the  argument,  Avhile  often  very  ma- 
terial in  courts  of  record  where  the  question  is  to  be  tried,  if 
narrowed  by  written  pleadings  to  a  single  point  or  points, 
affirmed  on  the  one  side  and  denied  or  traversed  on  the  other,  is 
of  little  importance  in  criminal  practice  or  Church  investigation, 
as  the  usual  defense  is  a  denial  of  the  charges  and  specifications, 
and  the  burthen  of  proof  is  upon  the  prosecution  ;  there  may, 
however,  be  cases  where,  even  before  an  ecclesiastical  tribunal, 
the  defendant  not  being  able  to  deny  the  charge  in  terms,  but  re- 
lying upon  a  justification  in  order  to  obtain  the  advantage  of 
opening  and  closing  the  arguuient,  would  admit  the  charges  and 
specifications.  Under  such  circumstances  we  think  that  the  de- 
fendant w^ould  be  entitled  to  the  affirmative. 

After  the  argument  has  been  closed,  it  is  the  duty  of  the  com- 
mittee or  conference  to  retire  and  deliberate  upon  all  the  ques- 
tions under  consideration  submitted  to  them  for  decision ;  and 
while  it  is  the  province  of  the  committee  or  conference,  strictly 
speaking,  to  judge  of  the  facts,  and  of  the  presiding  officer  to  de- 
termine the  law,  yet  in  passing  upon  the  whole  question  of  guilt  or 
innocence,  they  must,  ex  necessitate,  apply  the  law  to  the  facts, 
and  of  course  are  compelled  to  pass  upon  it.  And  this  evolves 
the  qviestion  whether  they  should  receive  the  law  from  the  pre- 
siding officer,  or  judge  of  and  determine  it  as  they  judge  of  and 
determine  the  facts.  By  ever}'  analogy  of  the  law,  we  are  forced 
to  the  conclusion  that  the  presiding  officer  has  the  legal  right  to 
instruct  the  committee  with  reference  to  the  law  of  the  case 
where  such  instruction  is  essential  to  a  correct  determination  of 
the  issue  presented.     Beyond  this  the  presiding  officer  should  not 

^Davis  V.  Mason,  4  Pick.  159. 


414  ECCLESIASTICAL  LAW. 


go;  he  should  take  no  part  in  their  deliberations,  further  than 
to  preside  over  the  committee  or  conference  till  it  has  made  up 
a  verdict.^ 

As  Ave  have  before  intimated,  the  committee  pass  upon  the 
entire  question  of  the  guilt  or  innocence  of  the  accused,  although 
Biich  question  may  be  compounded  of  law  and  facts.  They  have 
no  authority,  however,  to  determine  the  sufficiency  or  insuffi- 
ciency of  the  charge  or  charges,  specification  or  specifications! 
but  they  have  the  right  to  determine  the  question  as  to  Avhether 
such  charge,  specification,  or  specifications  are  proved ;  and  also 
the  degree  of  guilt,  whether  of  the  first  or  second,  or  even  of 
lesser  degree ;  and  in  doing  so  it  is  proper  for  them  to  take  into 
consideration  all  of  the  circumstances,  whether  they  aggravate 
or  modify  the  guilt.  The  committee  in  their  finding  should  also 
fix  the  punishment ;  and  Avlien  they  have  determined  the  charac- 
ter of  the  judgment  or  finding,  such  finding  should  be  written 
out,  specifying  the  charges  or  specifications  upon  which  it  is 
based,  and  then  signed  by  a  mnjoi'ity  of  the  committee,  or,  as  in 
the  trial  of  a  traveling  preacher,  by  the  president  and  secretary 
of  the  committee  or  select  number. 

It  does  not  require  the  unanimous  concurrence  of  all  the 
members  of  a  committee  or  of  a  conference  in  order  to  the  rendi- 


^  The  question  has  frequently  been  asked,  May  tlie  preacher  remain  with  the 
select  number  while  they  are  makins;  up  their  judjrment?  In  reply,  Bishop  Hed- 
ding  remarks,  "Certainly  he  ouglit;  for  he  is  pastor  of  the  flock,  and  he  would 
greatly  neg-lect  his  duty  were  he  to  be  al)sent,  and  consequently  not  know  on 
what  law  or  evidence  the  judgment  is  rendered."  Mr.  Wesley  believed  that  the 
New  Testament  makes  the  pastor  responsible  to  Christ  for  the  purity  of  the 
flock,  and  hence  he  should  judge  as  to  the  guilt  or  innocence  of  the  accused 
member.  Our  fathers  administered  the  discipline  on  this  principle  up  to  the 
year  1800.  It  was  then  provided  that  the  society  or  select  committee  should 
pronounce  an  opinion  upon  the  guilt  or  innocence  of  the  accused,  and  the  action 
of  the  preacher  was  to  be  governed  by  this  decision.  The  entire  responsibility 
of  the  decision,  we  repeat,  rests  alone  upon  the  committee.  The  pre.'ichor,  under 
no  circumstances,  should  attempt  to  balance  the  evidence,  weigh  probabilities, 
determine  the  credibility  of  witnesses,  or  draw  inferences  from  the  facts  proved, 
and  thus  determine  disputed  questions  of  ftict,  even  at  the  request  of  the  parties. 
"  No  judicious  administrator  of  the  discipline,"  says  Bishop  Morris,  "will  let  the 
committee  or  any  other  person  know  his  opinion  of  the  case,  either  before  the 
trial  or  during  its  progress,  till  the  number  of  the  committee  have  made  their 
decision  and  signed  their  names  to  it."     Baker  on  the  Discipline,  Sec.  7,  p.  101). 


THE  RIGHT  TO  OPEN  AND  CLOSE.  415 

tion  of  a  verdict,  as  in  the  case  of  a  trial  before  a  jury  in  our 
civil  courts,  but  the  finding  of  a  majority  of  a  committee  or  of  a 
conference  constitutes  the  decision.  And  by  this  provision,  al- 
though it  is  a  variance  from  the  practice  in  our  common  law 
courts,  substantial  justice  is  obtained. 

After  the  committee  have  agreed  upon  and  signed  a  verdict, 
they  should  deliver  the  same  to  the  preacher  in  charge,  or  other 
presiding  officer ;  and,  if  there  is  any  informality  or  irregularity 
in  their  written  findings,  the  preacher  in  charge  before  receiving 
the  same  as  the  decision  of  the  committee,  and  before  they  are 
discharged  from  the  consideration  of  the  case,  may  require  such 
committee  to  correct  and  revise  their  finding,  so  as  to  conform  it 
to  the  Discipline  and  usages  of  the  Church.  This,  however,  can 
not  be  done  after  the  committee  is  discharged ;  and  there  is  but 
one  way  of  correcting  such  finding,  and  that  is  to  take  the  same 
upon  appeal  before  the  proper  appellate  tribunal. 

We  have  at  some  length  considered  the  mode  of  conducting 
a  trial,  including  the  arraignment  of  the  accused ;  the  investi- 
gation of  facts,  the  examination  and  cross-examination  of  the 
witnesses  on  the  part  of  the  prosecution  and  the  defense,  the 
order  in  which  testimony  should  be  brought  forward,  the  argu- 
ment of  counsel,  the  charge  of  the  presiding  officer  as  to  questions 
of  law,  material  to  the  issue,  and  the  verdict  of  the  committee; 
and  it  now  remains,  under  this  head,  to  refer  but  briefly  to  the 
final  action  of  the  presiding  officer,  which,  as  we  have  already 
seen  in  case  of  an  acquittal  by  the  committee,  is  simply  to  direct 
the  recording  of  the  finding;  and,  in  case  of  conviction,  to  pro- 
nounce the  judgment,  based  upon  the  finding  of  the  committee. 

The  presiding  officer  has  no  authority  to  grant  a  new  trial, 
but  the  Discipline  provides,  in  ^  229,  that  if  in  the  trial  of  mem- 
bers of  the  Church  the  preacher  in  charge  differ  in  judgment 
from  the  majority  of  the  committee  concerning  the  guilt  or  inno- 
cence of  the  accused,  he  may  refer  the  case  to  the  ensuing 
quarterly  conference,  which  shall  have  authority  to  order  a  new 
trial.  In  all  other  cases  a  new  trial,  if  had  at  all,  must  be 
secured  through  the  order  of  an  appellate  tribunal  to  which  the 
matter  has  been  regularly  carried.  And  the  reasons  for  allow- 
ing new  trials  will.be  mentioned  under  the  head  of  appeals. 

After  all  proceedings  authorized  by  the  Discipline  have  been 


416 


ECCLESIASTICAL  LAW. 


had  in  the  original  trial,  and  the  party  arraigned  has  been  found 
guilty,  nothing  remains  but  to  pronounce  such  judgment  as  is 
determined  upon  by  the  Discipline,  law,  and  finding  of  the  com- 
mittee, and  this  must  be  done  before  an  appeal  can  be  taken  from 
the  decision  of  the  inferior  court  or  tribunal  to  one  exercising  an 
appellate  jurisdiction.  If  the  rule  were  otherwise  and  the  party 
might  stay  the  judgment  or  sentence  by  praying  an  appeal,  he 
might  never  have  judgment  against  him,  and  wholly  avoid  the 
legal  consequences  by  failing  to  prosecute  his  appeal.  If  an  ap- 
peal is  taken  and  the  judgment  is  reversed,  the  effect  of  it  is  to 
annul  the  sentence,  and  the  party  is  restored  to  his  former  status 
or  relation,  as  though  no  sentence  had  been  pronounced  against 
him. 


CHAPTER  VII. 

WHEN   AND   HOW  TO    TAKE   AN   APPEAL. 

By  the  common  law,  proceedings  by  way  of  appeal  were  un-" 
known.  There  Avas  but  one  mode  known  to  that  system  of  juris- 
prudence by  which  a  court  of  supeiior  jurisdiction  could  review 
the  judgment  or  proceedings  of  a  court  of  inferior  jurisdiction, 
and  that  was  by  a  proceeding  in  the  nature  of  a  writ  of  error. 
And  this  mode  of  proceeding  is  still  known  to  our  civil  tribunals. 
Nearly  all  the  States,  at  a  very  early  period  in  their  history,  pro- 
vided for  taking  an  appeal;  and  upon  an  appeal  the  appellate 
court,  having  acquired  jurisdiction,  has  all  the  right  and  author- 
ity to  revise  the  decision  of  an  inferior  tribunal  that  it  has  on  a 
writ  of  error ;  in  fact,  the  only  difference  existing  now  between 
the  two  modes  of  procedure  is  to  be  found  in  the  manner  of 
bringing  the  record  and  parties  interested  before  the  api)ellate 
tribunal.  A  writ  of  error  is  in  the  nature  of  a  conniicncoment 
of  a  new  suit.  It  issues  at  the  instance  of  the  party  complaining, 
out  of  the  superior  court,  directed  to  the  inferior  court  or  subor- 
dinate tribunal,  commanding  them  to  certify  up  their  record  and 
proceeding,  so  that  if  error  has  intervened  in  the  proceedings, 
the  same  may  be  corrected  and  revised.  The  parties  have  to 
be  notified  or  summoned  anew.  Upon  an  appeal,  however,  the 
appeal  is  prayed  by  the  appellant,  and  granted  as  a  matter  of 
strict  right  by  the  court  or  tribunal  of  original  or  inferior  juris- 


WHEN  AND  HOW  TO  TAKE  AN  APPEAL.  417 

diction,  and  when  granted,  botli  parties,  in  legal  contemplation, 
are  before  the  court,  and  they  are  bound  to  take  notice  that  the 
appeal  has  been  prayed  for  and  allowed,  and  no  further  notice  or 
process  is  necessary  in  order  to  bring  the  appellee  before  the  ap- 
pellate tribunal ;  it  is  his  duty  to  follow  up  the  proceedings  and 
to  take  notice  of  every  step  in  the  cause  from  the  time  proceed- 
ings arc  first  instituted  until  the  same  is  finally  disposed  of  by 
the  appellate  tribunal.  In  this  view  of  the  question  it  is  evident 
that  the  appeal  should  be  regularly  prayed  for  and  allowed  at  the 
same  time  that  judgment  or  sentence  is  pronounced;  or,  at  least, 
it  should  be  asked  and  allowed  during  the  same  term  of  court. 
In  our  civil  courts,  by  a  fiction  of  law,  the  entire  term,  without 
reference  to  the  length  or  duration  of  such  term,  is  regarded  as 
but  one  day.  And  during  the  term  the  record  and  proceedings 
are  under  the  control  of  the  court,  and  may  be  revised  or 
changed;  but  after  the  term  is  over  no  such  power  exists,  except 
as  to  matters  of  mere  form. 

There  is  no  provision  in  the  Discipline  for  reviewing  the  pro- 
ceedings of  a  Church  tribunal  except  by  an  appeal ;  and  where 
the  party  has  omitted  to  pray  an  appeal  and  take  the  necessary 
steps  to  have  the  same  perfected  at  the  time  of  the  trial,  he  has 
no  authority  to  do  so  afterwards. 

Where  an  appeal  has  been  taken,  it  is  the  duty  of  the  appel- 
lant to  see  that  it  is  properly  made  up,  and  all  the  papers  per- 
taining to  it,  including  the  evidence,  properly  certified  and 
forwarded  to  the  proper  appellate  tribunal ;  for  if  he  fails  to 
prosecute  his  appeal  the  other  party  may  have  the  same  brought 
forward,  and,  on  motion,  dismissed  in  the  appellate  tribunal.  A 
failure  to  prosecute  an  appeal,  however,  does  not  give  the  tribu- 
nal from  whose  decision  the  appeal  is  taken  any  authority  over 
the  case  or  over  the  appellant  until  the  appeal  is  finally  disposed 
of,  and  it  can  only  be  disposed  of  by  the  appellate  tribunal. 

Having  referred  to  the  manner  of  taking  an  appeal,  and  the 
time  at  which  such  appeal  shall  be  taken  we  propose  to  consider 
the  diff'erent  modes  of  proceeding  upon  the  hearing  of  an  appeal 
in  the  appellate  tribunal,  being  careful  to  distinguish  between 
such  as  are  in  the  nature  of  original  proceedings  and  such  as 
are  simply  appellate  or  revisory. 


413  ECCLESIASTICAL  LAW. 

CHAPTER  VIII. 

PRACTICE   IN   THE   APPELLATE    COURTS. 

The  Discipline  provides  for  two  modes  of  procedure  in  an 
ecclesiastical  court  exercising  appellate  jurisdiction.  First  where 
the  trial  is  de  novo,  as  in  the  trial  of  the  appeal  of  a  bishop  by  the 
General  Conference.  Here  all  the  facts  pertaining  to  the  accusa- 
tion are  subject  to  be  considered,  the  same  as  though  such  tribunal 
was  exercising  original  jurisdiction  ;  and  while  proceeding  in  this 
way,  all  the  rules  of  evidence  applicable  to  a  proceeding  upon  an 
original  trial  or  investigation  apply,  and  all  the  questions  of  a 
preliminary  character,  Avith  reference  to  the  admission  of  testi- 
mony and  with  reference  to  all  other  legal  questions,  are  to  be 
decided  by  the  bishop  presiding  in  the  same  manner  as  though 
it  were  an  original  investigation  or  trial.  Tlie  legal  effect  of  an 
appeal  from  an  inferior  to  an  appellate  tribunal  of  the  Church 
is  to  suspend  the  judgment  or  sentence  until  the  case  is  heard 
and  disposed  of  upon  the  appeal.  And  all  irregularities,  where 
the  proceedings  are  de  novo,  that  have  taken  place  in  the  trial 
or  invesiigation  below  are  waived  when  the  parties  go  to  trial 
without  objections  before  the  appellate  tribunal.  If  exception 
is  to  be  taken  on  the  ground  of  a  want  of  conformity  to  the 
law  in  taking  the  appeal  or  in  authenticating  and  certifying  the 
proceedings,  papers,  and  documents,  the  objection  must  be  made 
before  proceeding  to  trial;  for  it  is  too  late  to  insist  upon  any 
such  formal  defects  after  the  trial  has  commenced. 

Where  the  trial  before  an  appellate  tribunal  is  de  novo,  the 
prosecution  should  regularly  introduce  their  evidence  in  the  same 
manner  as  if  they  were  proceeding  to  make  out  an  original  case. 
There  is  no  provision  in  the  Discipline,  rules  of  practice,  or 
usages  of  the  Church,  which  would  require  the  prosecution  or 
the  defense  to  be  confined  or  restricted  to  the  evidence  offered 
below.  Indeed,  the  oral  evidence  taken  upon  the  previous  ex- 
amination, reduced  to  writing  and  authenticated,  is  only  admissi- 
ble when  it  is  made  so  by  the  express  provision  of  the  Discipline, 
or  by  the  agreement  of  the  parties.  The  rule  is  different,  how- 
ever, in  regard  to  depositions.    It  is  not  necessary  that  they  should 


PRACTICE  IN  THE  APPELLATE  COURTS.  419 

be  retfikcn;  but  depositions,  if  legjilly  taken  and  properly  .lutlien- 
ticated  to  be  used  on  the  fornier  trial,  may  be  used  before  the 
appellate  tribunal.  In  view  of  this  fact  we  apprehend  that  any 
objections  to  the  sufficiency  of  the  deposition,  or  to  its  authenti- 
cation, may  be  made  before  the  appellate  tribunal  in  the  same 
manner,  and  with  the  same  effect  that  objections  could  have  been 
urged  before  the  original  tribunal.  This  rule,  however,  is  only 
applicable  where  the  trial  is  de  novo.  Wliere  objections  to  dep- 
ositions are  relied  upon,  especially  to  the  formal  parts,  such  ob- 
jections should  be  regularly  made  before  the  commencement  of 
the  trial,  or  the}^  will  be  regarded  as  waived. 

The  prosecution,  in  a  trial  de  novo  before  an  appellate  tri- 
bunal, holds  the  affirmative  of  the  issue,  and  is  entitled  to  begin 
and  to  conclude  both  the  evidence  and  the  argument.  But  where 
the  appellate  tribunal  is  required  by  the  Discipline  to  hear  and 
determine  the  case  upon  the  record,  either  upon  the  evidence 
originally  taken  and  certified  to  the  appellate  tribunal,  or  upon 
questions  of  law  arising  upon  the  former  trial  and  brought  up  for 
revision,  a  different  rule  obtains,  for  there  the  party  complaining 
of  error  and  irregularities  in  the  proceedings  holds  the  affirmative 
of  the  issue,  and  is  entitled  to  begin  and  conclude  the  argument. 
As  Ave  have  previously  seen,  every  intendment  in  favor  of  the 
regularity  and  correctness  of  the  proceeding  is  made  by  an  appel- 
late tribunal,  and  the  party  complaining  of  error  must  make  it 
out.  Thus,  if  an  appeal  from  the  ruling  upon  a  mere  abstract 
question  of  law  was  taken  from  the  decision  of  a  bishop,  made  in 
an  annual  conference,  to  a  judicial  conference,  without  preserving 
the  evidence,  or  without  showing  that  such  decision  was  irrele- 
vant, the  presumption  to  be  indulged  by  the  judicial  conference  is 
that  a  state  of  fjicts  existed,  such  as  warranted  and  justified  the 
decision,  and  that  such  decision  was  correctly  made,  thus  devolv- 
ing upon  the  party  alleging  eiTor  in  the  decision  to  show  wherein 
the  error  consisted,  and,  if  the  decision  under  any  state  of  facts 
consistent  with  the  issue  is  sustainable,  the  appellate  tribunal 
Avill  presume  that  such  facts  existed. 

After  a  party  has  been  convicted  and  has  taken  an  appeal, 
and  where  the  trial  is  such  as  not  to  admit  of  the  introduction  of 
new  evidence,  the  presumption  indulged  in  favor  of  innocence  is 
changed,  and  the  party  is  no  longer  presumed  to  be  innocent,  for 


420  ECCLESIASTICAL  LAW. 

his  guilt  is  established  and  fixed  by  a  tribunal  of  competent  juris- 
diction, and  the  prosecution  then  becomes  the  defendant,  the  bur- 
den of  proof  being  upon  the  appellant  or  party  accused  to  show 
such  illegality  or  irregularity  in  the  proceedings  as  to  justify  a 
reversal,  for  until  the  proceedings  are  reversed  by  competent 
authority  his  guilt  is  fixed,  and  there  is  no  way  of  avoiding  its 
eff'ect  wliere  the  court  or  other  tribunal  had  jurisdiction,  except 
by  a  direct  proceeding  in  which  the  entire  record  and  proceed- 
ings are  opened  up  for  inspection  and  examination.^  The  rule 
in  our  civil  courts  uniformly  established  carries  the  intendments 
indulged  not  only  in  favor  of  the  decisions  upon  questions  of  law, 
but  also  upon  questions  of  fact,  to  the  extent  of  presuming  in 
favor  of  the  correctness  of  such  decision  where  the  evidence  is 
conflicting  and  contradictory,  concluding,  and  properly  conclud- 
ing, tliat  it  is  the  province  of  the  jury,  in  the  light  of  all  the  sur- 
rounding circumstances,  to  weigh  it  and  to  give  to  it  such  credit 
as  it  is  entitled  to,  and  an  appellate  tribunal  is  justified  in 
disturbing  the  finding  only  when  such  finding  is  manifestly 
against  the  Aveight  of  evidence.^  Where  an  appeal  has  been 
taken  in  a  case,  and  by  the  provisions  of  the  Discipline  the  ap- 
pellate tribunal  is  restricted  to  an  examination  of  the  record  and 
documents  accompanying  such  appeal,  and  the  appellate  tribunal 
has  no  authority  to  review  the  facts  further  than  the  same  have 
been  preserved  of  record,  and  simply  to  revise  and  review  the 


^  If  the  court  liad  jurisdiction,  however  erroneous  the  decree  may  be,  it  can 
only  be  avoided  l)y  a  direct  proceedinj^  for  that  purpose,  and  can  not  be  attacked 
for  error  when  brought  in  question  in  another  and  independent  proceeding. 
Weinei'  v.  Jldiiiz,  17  Ills.  2.6L 

2  On  this  point  Skinner,  J.,  in  the  case  of  French  v.  Lowry  (19  Ills.  150), 
say.s  :  "We  can  not  disturb  the  finding  of  the  Court.  It  is  impossible  so  fully 
and  certainly  to  comprehend  the  merits  of  a  cause  presented  by  the  parties  in 
open  court  and  investigated  directly  through  the  medium  of  witnesses  before  the 
Court,  thus  affording  opportunity  of  reviewing  all  the  surroundings  of  the  con- 
troversy and  of  judging  of  the  means  of  knowledge  of  facts  and  fairness  of  the 
witnesses,  on  reproduction  of  the  case  by  bill  of  exceptions.  Therefore  this 
Court  will  not  disturb  the  finding  of  the  Circuit  Court,  or  the  verdict  of  the  jury 
on  the  facts,  unless  that  finding  is  clearly  wrong."  A  portion  of  the  plaintiff's 
account  was  proved,  and  upon  presentation  no  complaint  was  made  concerning 
it  by  the  defonda?it,  except  as  to  the  time  of  payment;  and  the  suit  and  recovery 
proved  by  the  defendant  in  bar  was  upon  a  different  demand,  which  could  not 
embrace  another  demand  not  then  due. 


PRACTICE  IN  THE  APPELLATE  COURTS.  421 

proceedings  for  errors  appearing  upon  the  face  of  the  proceed- 
ings, certain  rules  of  construction  governing  the  practice  of 
appelLate  courts  are  applicable  and  should  never  be  lost  siglit  of, 
for  they  tend  to  a  correct  administration  of  the  Discipline.  We 
shall  review  them  briefly  for  the  purpose  of  showing  their  appli- 
cability. The  first  of  those  rules  to  which  we  desire  to  direct 
attention  is,  that  a  party  will  never  be  permitted  to  complain  of 
error  or  of  irregularity  where  such  error  or  irregularity  is  in  his 
OAvn  favor,  unless  he  shows  that  he  is  injured  by  it.  A  party 
may,  under  peculiar  circumstances,  reverse  his  own  judgment 
when  he  is  aggrieved  by  it.  In  England,  at  one  time,  he  might 
do  so  though  not  aggrieved,  for  a  reason  since  exploded,  that  the 
king  would  lose  his  fine,  and  the  reversal  was  for  his  benefit ;  but 
subsequently  it  was  held  that  a  party  shall  not  reverse  his  own 
judgment  unless  he  shows  the  error  is  to  his  disadvantage.^  The 
second  rule  that  obtains  in  an  appellate  proceeding  is,  that  where 
there  is  a  general  objection  to  the  admission  of  evidence,  if  it  be 
one  that  if  the  pai'ticular  objection  had  been  pointed  out  it  might 
have  been  obviated,  the  party  making  such  objection  will  not  be 
permitted  to  take  advantage  of  it  before  the  appellate  tribunal; 
but  where  the  objection  is  of  such  a  character  that  if  the  defect 
had  been  pointed  out  it  could  not  have  been  obviated,  it  is  a 
ground  for  reversal  or  revision  of  the  decision.^  The  same  prin- 
ciple that  led  to  the  adoption  of  this  latter  rule  lias  been  carried 
to  the  extent  of  excluding  from  the  consideration  of  the  appellate 
tribunal  all  questions  that  were  not  made  and  fairly  presented  to 
the  inferior  jurisdiction  whose  sentence  or  judgment  is  sought  to 
be  revised;  in  all  cases  where,  if  the  objection  had  been  fairly 
made  and  the  grounds  of  the  objection  specifically  pointed  out  it 
might  have  been  corrected  without  subjecting  the  party  to  the 
expense  and  necessity  of  an  appeal.  It  is  otherwise,  however, 
where  the  objection  is  of  such  a  character  that  had  it  been 
pointed  out  it  could  not  have  been  obviated  ;  and  this  on  princi- 
ple would  seem  to  be  right,  for  a  party  should  not  be  permitted, 
when  he  discovers  that  errors  are  being  committed,  to  lie  silently 

^  Stone  V.  Chase,   13  Wendell,  282;     Beecha-  v.   Shirley,  Chro.  Jas.  212; 
Hughes  v.  Stickney,  13  Wendell,  280. 

^Merritt  v.  Seammi,  6  N.  Y.  168;  Pratt  v.  Foot,  9  N.  Y.  463;  Isham  v 
Davidson,  52  N.  Y.  237. 

28 


422  ECCT.ESIASTTCAL  LAW. 

by  and  wait  until  he  has  experimented  upon  the  general  result 
and  then,  if  it  is  unfavorable,  fall  back  upon  an  objection  that  he 
has  tacitly  waived  by  his  silence. 

If  a  party  desires  to  avail  himself  of  the  rulings  of  a  court 
or  of  a  presiding  officer  upon  an  appeal,  he  must  have  the  objec- 
tion and  the  rulings  of  the  court  regularly  minuted,  so  that  they 
will  be  apparent  upon  the  face  of  the  record  or  proceedings ;  and 
this  should  be  regularly  done  at  the  time,  for  unless  the  decision 
of  the  presiding  officer  is  excepted  to  at  tlie  time  or  before  the 
conclusion  of  the  trial,  the  party  can  not  do  so  afterwards  or  avail 
himself  of  the  objection  upon  an  appeal.  Where  an  exception 
appears  in  the  minutes  of  the  proceeding,  such  exception  will  be 
presumed  to  have  been  taken  in  due  time  until  the  contrary 
appears.  ^ 

If  the  bill  or  minutes  show  on  their  face  that  the  exception 
was  not  taken  on  the  trial,  it  will  be  disregarded.^ 

^  In  the  case  of  Warren  and  Andrews  v.  Lyons  and  Evans  (9  Wend.  244), 
the  Court  held  that  thej  -would  presume  that  the  exception  was  taken  in  due 
time,  unless  it  is  expressly  shown  that  it  was  not  taken  until  after  the  verdict. 

Savage,  Ch.  J.,  held  that  where  the  defendant  might  have  excepted  and 
brought  in  review  the  decisions  that  were  against  him,  but  failed  to  do  so,  that 
the  Court  would  not  consider  the  objection,  except  so  far  as  the  defect  in  the  par- 
ticulars specified  in  the  bill  of  exceptions.     Dean  v.  Gridley^  10  Wend.  257. 

2  Berhj  v.  Taylor,  5  Hill  580. 

In  Starin  v.  The  People  (45  N.  Y.  S37),  the  Court  held,  that  where  by  the 
record  it  appears  that  the  trial  of  the  indictment  was  moved  the  trial  must  pro- 
ceed. The  prisoner's  counsel  then  raised  various  questions,  and  among  others, 
the  one  under  consideration.  The  Court  entertained  these  questions  not  only, 
but  received  evidence  by  admissions  of  the  district  attorney  of  facts  to  enable  it  to 
pass  upon  the  questions  intelligently  and  appropriately.  The  point  we  are  now 
considering  was  not  prelifr.inary  in  its  nature,  bnt  one  proper  to  be  raised  and 
determined  upon  trial,  and  although  the  Court  might  have  declined  to  entertain 
it  at  that  stage  of  the  proceedings,  it  was  not  improper  to  settle  it  in  advance. 
It  was  fundamental  in  its  character,  and  would  necessarily  give  direction  to  the 
whole  course  of  the  trial,  the  evidence  to  be  given,  and  the  verdict  to  be  ren- 
dered, and  we  can  not  say  that  it  might  not  influence  the  composition  of  the 
jury  itself,  and  the  exercise  of  the  right  of  challenge.  The  facts  admitted  by 
the  district  attorney  were  only  proper  to  be  proved  on  the  trial,  and  when  re- 
ceived they  were  as  much  a  part  of  the  evidence  on  the  trial  as  any  other.  It  is 
unnecessary  to  say  that  in  order  to  avail  himself  of  the  exception  the  prisoner 
had  a  strict  right  to  take  it  at  the  time  he  did.  It  is  sufRcient  that  the  Court  en- 
tertained the  question  and  passed  upon  its  merits  as  upon  the  trial,  and  that  the 
parties  so  regarded  it  and  acted  upon  it.     It  is  too  late  to  say  that  the  exception 


PRACTICE  IN  THE  Al'l'ELLATE  COURTS.  423 

There  are  certain  mutters,  to  wliicli  Ave  have  referred  under 
tlie  different  appropriate  lieads,  of  discretion  with  wliich  a  court  or 
presiding  officer  is  clothed,  that  are  not  subject  to  review  by  an 
appellate  tribunal,  unless  such  discretion  is  so  manifestly  wrong 
as  to  impress  the  appellate  tribunal  at  first  impression  that 
injustice  has  been  done.  It  is  not  enough  to  authorize  the  ap- 
pellate tribunal  to  interfere  that  they  Avould  have  exercised  their 
discretion  differently,  but  the  exercise  of  it, before  it  is  subject  to 
revision,  must  be  clearly  and  manifestly  wrong.  If  the  rule  were 
otherwise,  all  judicial  discretion  would  be  at  an  end,  and  there 
would  be  no  opportunity  of  tempering  the  rigor  of  the  technical 
rules  of  law  by  the  exercise  of  a  sound  discretion.  Thus  it  is  a 
matter  of  discretion  with  the  court  whether  witnesses  shall  be 
separated  during  their  examination,  and  the  court  exercising  an 
appellate  jurisdiction  will  not  inquire  Avhether  that  discretion  was 
judiciously  exercised  or  not.^  So,  also,  it  is  discretionary  with 
the  court  to  hear  additional  testimony  after  the  evidence  is  closed 
and  before  the  jury  has  retired. 

It  is  apparent,  from  the  authorities  referred  to,  that  it  is  only 
matters  of  form  that  may  be  waived  or  dispensed  with  by  tacit 
acquiescence  or  by  construction  of  law,  where  the  defect  com- 
plained of  is  one  of  substance  that  materially  affects,  or  might 
affect,  the  justice  of  the  sentence  or  decision,  or  where  there  is 
an  apparent  want  of  jurisdiction  or  authority  in  the  tribunal 
making  the  decision.  The  objection  may  be  made  before  the 
appellate  tribunal  and  insisted  upon,  notwithstanding  that  it  was 
not  made  nor  the  question  presented  to  the  subordinate  tribunal. 
This  statement,  however,  should  be  subject  to  this  important 
qualification,  that  it  is  only  a  want  of  jurisdiction  over  the  subject 
matter  that  can  not  be  waived.  For  illustration,  the  annual  con- 
ference, by  the  Discipline,  has  no  authority  to  try  a  local  preacher 
for  any  canonical  offense  except  the  case  is  appealed  and  comes 
up  regularly  on  appeal  from  a  quarterly  or  district  conference. 

was  not  taken  upon  the  trial.  If  a  court  in  a  civil  or  criminal  case  entert:\ins 
and  decides  material  legal  questions  which  belong  to  and  are  properly  a  part  of 
the  trial  before  empaneling  a  jury,  and  the  parties  act  upon  them,  such  decisions 
should  be  deemed  incorporated  into  the  proceedings  on  the  trial,  or,  in  other 
words,  a  part  of  the  trial  itself. 

*  EiTissman  v.  Errissman.  25  Ills.  137. 


424  ECCLESIASTICAL  LAW. 

In  consequence  of  this  want  of  jurisdiction  the  annual  conference 
could  not  acquire  authority  to  investigate  a  charge  against  a  local 
preacher  even  by  the  consent  of  parties,  and  where  the  consent 
of  parties  in  such  a  case  is  apparent  upon  the  face  of  the  pro- 
ceeding, still  it  would  be  the  duty,  on  an  appeal,  to  revise  the 
decision  without  reference  to  the  merits  of  the  controversy  on  the 
account  of  the  want  of  jurisdiction. 

In  all  appellate  proceedings  in  our  Church  coui'ts,  the  pur- 
pose of  the  appellant  is  to  overthrow  or  set  aside  the  finding  and 
sentence  of  tiie  inferior  tribunal.  Such  a  result  may  be  reached 
in  either  one  of  two  ways  :  by  reversing  the  decision  of  the  court 
below,  or  by  remanding  the  case  for  a  new  trial.  If  the  ap- 
pellate court,  on  hearing  the  testimony  and  pleadings  in  the  case, 
reverses  the  decision  already  had,  this  reversal  is  in  fact  a  ver- 
dict of  acquittal,  and  not  only  restores  the  accused  to  the  rights 
of  membership  and  privileges  of  which  he  may  have  been  de- 
prived by  the  original  trial,  but  operates  as  a  bar  to  any  further 
proceedings  against  him  under  the  bill  of  charges  on  which  he 
was  tried. 

If  the  case  be  remanded  for  a  new  trial,  the  appellant  is  not, 
by  this  act  of  the  appellate  court,  acquitted  of  the  charges 
against  him,  but  he  stands  in  precisely  the  same  relation  to  the 
Church  as  he  did  after  the  charges  were  preferred  against  him 
and  before  he  was  tried  ;  that  is  to  say,  he  stands  in  the  relation 
of  an  accused  member,  or  minister,  as  the  case  may  be.  When 
the  case  is  remanded  for  a  new  trial,  the  accused  may  be  tried 
on  the  same  charges  as  in  the  first  trial ;  or  the  charges  may  be 
amended  or  modified;  or  they  may  be  withdrawn  and  the  prose- 
cution abandoned.  The  withdrawal  of  the  charges  is  not  a  bar 
to  their  being  renewed  and  prosecuted  at  a  future  time. 

If  the  court  having  appellate  jurisdiction  shall  neither  reverse 
the  decision  of  the  inferior  tribunal  nor  remand  the  case  for  a 
new  trial,  the  decision  of  the  inferior  tribunal  stands  as  the  final 
adjudication  of  the  case,  even  though  a  motion  in  the  appellate 
court  to  aftirm  the  decision  of  the  court  below  had  been  put  and 
lost.  ^      It  is  evident  that  the  appellate  tribunal,  having  acquired 

'^Resolved,  That  it  is  the  sense  of  this  Conference,  that  when  the  motions  to 
aflirm,  to  remand,  and  to  reverse,  have  been  successively  put  and  lost,  the  de- 


PRACTICE  IN  THE  APPELLATE  COURTS.  425 

entire  jurisdiction  of  the  cause,  are  competent  to  make  a  final  dis- 
position of  it,  and  it  is  discretionary  with  them  whether  they  will 
direct  a  new  trial  or  decide  the  case  upon  the  evidence.  They 
should  not,  however,  proceed  to  a  final  sentence  or  determination 
of  the  case,  and  especially  to  a  reversal  of  the  decision  of  the 
inferior  court  where  such  reversal  would  take  place  in  conse- 
quence of  some  defect  in  the  proceedings  which  it  is  not  in  the 
power  or  jurisdiction  of  the  appellate  tribunal  to  revise,  or  in  a 
case  where  the  charges  and  specifications  are  not  sufficient  to 
support  the  findings.  Nor  should  the  appellate  court  proceed  to 
a  final  determination  of  the  cause  when  it  is  made  reasonably 
apparent  that  evidence  material  and  relevant  to  the  issue  has 
been  excluded  from  the  consideration  of  the  inferior  court ;  for 
no  party  ought  to  be  deprived  of  the  benefit  of  such  testimony 
on  a  rehearing;  and  when  our  appellate  tribunals  are  required 
simply  to  examine  and  revise  the  decision  of  subordinate  tribu- 
nals, and  have  no  authority  to  hear  the  case  de  novo,  and  can  not, 
therefore,  in  hearing  a  case  on  appeal  admit  new  testimony-,  in  all 
such  cases,  simple  justice  requires  that  the  case  be  remanded  for 
a  new  trial.  It  may  be  proper  to  call  attention  to  the  fact  that  it 
is  not  every  error  committed  in  the  course  of  judicial  proceedings 
that  would  be  a  ground  for  reversing  the  judgment  or  sentence, 
or  for  granting  a  new  trial.  Where  the  appellate  tribunal  can 
see,  from  the  whole  record,  that  substantial  justice  has  been  done 
and  that  a  new  trial  would  result  in  the  same  waj',  they  should 
affirm  the  proceedings,  notwithstanding  the  error,  provided  that 
such  error  is  not  of  a  jurisdictional  character.^ 

cision  of  the  court  below  stands  as  the  final  adjudication  of  the  case.  Journal 
of  General  Conference  for  1860,  p.  248. 

The  committee  having  heard  and  considered  tlie  minutes,  documents,  and 
pleadings  in  the  first  appeal  case  of  Benjamin  T.  Roberts,  who  appeals  from  the 
decision  of  the  Genesee  Conference  whereby  he  was  adjudged  to  be  repri- 
manded before  the  Conference,  proceeded  to  vote  in  the  case,  with  the  following 
result:  On  the  question  of  affirming,  nineteen  voted  in  favor  and  nineteen 
against  it;  on  the  question  of  remanding  the  case  for  a  new  trial,  the  com 
mittee  voted  almost  unanimously  in  the  negative;  on  the  question  of  reversing 
the  action  of  the  Conference,  eighteen  voted  in  favor  and  twenty  against;  a 
result  which,  as  the  General  Conference  has  decided,  leaves  the  decision  of 
the  Genesee  Conference  as  the  final  adjudication  of  the  case.  Journal  of  the 
General  Conference  for  I860,  p.  252. 

^  In  the  case  of  Dishon  et  al.  v.  Schorr  (19  Ills.  02),  the  Court  say:   "We 


426  ECCLESIASTICAL  LAW. 

A  new  trial  may  be  granted  whenever,  in  the  opinion  of  the 
appellate  court,  substantial  justice  has  not  been  done,  owing  to 
some  error  either  in  the  rulings  of  the  presiding  officer  of  the  in- 
ferior court,  in  the  testimony  of  witnesses  by  which  the  facts  are 
proved,  or  in  the  finding  of  the  committee.  Thus,  if  improper 
evidence  was  admitted  on  the  trial,  and  such  improper  evidence 
induced  or  tended  to  induce  the  findings  of  the  committee,  tiie 
verdict  should  be  set  aside  and  the  cause  remanded  ;  or  whei-e 
irrelevant  testimony  was  admitted  which  might  have  influenced 
the  committee  in  their  findings.^  So,  where  the  prosecution  has 
failed  to  establish  some  material  fact  essential  to  support  the  find- 
ing, a  new  trial  may  be  awarded,  and  on  a  motion  to  set  aside  a 
verdict  on  tlie  ground  that  it  was  not  warranted  by  the  evidence, 
the  court,  or  the  presiding  officer,  will  not  receive  evidence  to 
supply  what  was  deficient  at  the  trial.  ^  A  new  trial  may  be 
granted  also  where  there  has  been  newly  discovered  evidence, 
that  is,  evidence  that  has  come  to  light  subsequent  to  the  trial, 
and  such  evidence  is  material,  and  not  merely  cumulative,  but 
relevant,  and  which,  if  offered,  would  probably  induce  a  different 
finding.  So  a  new  trial  may  be  granted  to  enable  the  defendant 
to  disprove  a  fact  which  he  could  not  have  expected  to  be  called 
upon  to  meet  at  the  trial.  ^  But  a  new  trial  should  not  be  granted 
on  after-discovered  evidence,  which  merely  goes  to  impeach  the 
credit  of  the  witnesses  who  testified  on  the  trial.*  Nor  should  a 
new  trial  be  granted  where  the  evidence  to  be  adduced  is  merely 
cumulative,  and  when  it  goes  to  the  fact  principally  controverted 
on  the  trial,  and  respecting  which  the  party  produced  testimony 
in  the  case.'^      Again,  a  new  trial  may  be  granted  where  the  jury 

can  not  see  wherein  injustice  has  been  done  the  plaintiff,  or  any  such  error  in 
any  of  the  proceedings  so  injuriously  affecting  them  as  to  warrant  a  reversal  of 
the  judgment  even  if  improper  instructions  have  been  given;  yet,  if  the  whole 
case  shows  that  substantial  justice  has  been  done,  a  judgment  will  not  be  dis- 
turbed for  that  cause." 

^  Clark  v.  Borce,  19  Wend.  232;   Boyle  v.  Coleman,  13  Barb.  42. 

'^  Watson  \.  DcUnJieUJ,  2  Cainos,  224;  Ritchie  v.  Putnam,  13  Wend.  524; 
Williams  v.  Wood,  14  Wendell,  12(5;   Jarvis  v  Sewell,  40  Barb.  449. 

^Sargent  v.  ,  5  Cowen,  IOC;   Parshall  v.  Klinck,  43  Barb.  203. 

^  Ilalsey  v.  Watson,  1  Caines,  24;  Bimn  v.  Iloyt,  3  John.  2.55;  Harring- 
ton V.  Bigelow,  2  Denio,  109. 

'"People  V.  The  Svperior  Court  of  N.  Y.,  10  Wend.  285;  Brishai\e  v.  Adams, 
1  Saun.  195. 


PRACTICE  IN  THE  APPELLATE  COURTS.  427 

or  committee  have  been  guilty  of  any  impropriety  in  making  up 
their  verdict,  or  have  been  approached  in  such  a  manner  as 
might  have  influenced  the  verdict.  Under  such  circumstances 
the  verdict  ought  to  be  set  aside  without  reference  to  the  source 
or  motive  of  the  interference  ;  it  is  enough  that  a  juror  or  a 
member  of  the  committee  has  listened  to  the  statements  of  a  third 
party,  attacking  the  credibility  of  the  defendant's  witnesses;^ 
but  the  mere  fact  that  a  juror  attempted  to  communicate,  or  did 
communicate  the  verdict  to  the  party  in  whose  favor  it  is  ren- 
dered, before  it  is  made  public  in  court,  is  not  sufficient  to  war- 
rant the  court  in  setting  it  aside.  The  rule  seems  to  be  firmly 
established,  that  the  affidavits  of  jurors  or  their  evidence  before 
the  court  are  not  receivable  to  impeach  their  verdict.  This  rule 
is  founded  upon  public  policy,  with  a  view  of  preventing  jurors 
from  being  tampered  with.^  The  confessions  of  jurymen,  as  to 
their  own  misbehavior,  but  not  as  to  the  misbehavior  of  their 
fellows,  in  some  cases,  have  been  received  in  evidence  on  motion 
for  a  new  trial,  and  upon  principle  it  Avould  seem  that  their 
affidavits  as  to  their  own  misbehavior  would  be  admissible.^  A 
contrary  doctrine  was  held  subsequently  by  the  Supreme  Court 
of  New  York.*  While  the  weight  of  authority  is  undoubtedly 
opposed  to  allowing  jurors  and  arbitrators  to  impeach  their  ver- 
dict, it  is  equally  well  settled  that  the  affidavits  or  the  evidence 
of  jurors  is  receivable  in  support  of  the  verdict. 

The  effect  of  the  granting  a  motion  made  for  a  new  trial 
is  to  reopen  the  investigation,  and  to  entitle  the  parties  to  a  trial 
de  novo  before  a  new  jury,  or  a  diflferent  committee,  and  upon 
such  second  trial,  before  a  tribunal  of  the  Church,  the  evidence 
must  be  taken  the  same  as  though  no  previous  trial  had  taken 
place,  and  the  minutes  of  the  evidence  taken  on  the  former  trial 
are  not  receivable  in  evidence  upon  the  subsequent  trial,  except 
by  consent  of  parties.     The  rule,  however,  is  different  with  re- 


^  Nesmith  v.  CHnton  Fire  Insurance  Co.,  8  Abbott's  Prac.  14L 

^  Dana  v.  Tucker,  4  John.  487;   Francis's  Case,  1  Ch.  Rec.  121;   People  v. 

Barker,  2  Wheeler  Crlm.  Cases,  19;  Clum  v.  Smith,  5  Hill,  560;   Brownell  v. 

M'Etoen,  5  Denio,  ;{67. 

*  Stnith  V.  Cheetham,  3  Caines's  Cases,  57. 

*  aum  V.  Smith,  5  Hill,  5fi0 ;    The  People  v.  Eartung,  4  Park,  256 ;  Taylor  v. 
Everet,  2  Howard's  Practice,  23. 


428  ECCLESIASTICAL  LAW. 

spect  to  depositions  that  liave  been  legally  taken  and  properly 
authenticated ;  and  with  respect  to  all  other  written  evidence,  the 
restriction  only  applying  to  the  verbal  proofs. 

It  is  evident  from  a  careful  review  of  the  principles  of  munic- 
ipal law,  the  rules  of  evidence,  and  a  correct  administration  of 
those  rules  of  law  and  principles  of  evidence,  that  the  law  is  not 
what  it  is  erroneously  supposed  by  many  to  be — a  mere  game  of 
chance,  in  which,  Avithout  any  reference  to  the  principles  of  right 
and  wrong,  the  decision  turns  upon  the  skill  of  tlie  players. 
There  are,  however,  in  the  legal  profession,  men  to  be  found,  as 
they  are  to  be  found  every-where  else,  who  never  comprehend  the 
fundamental  principles  of  the  law  as  a  science,  but  who  depend  for 
their  success  wholly  upon  some  dishonest  trick  or  some  mere 
technicality.  Such  men  are  subject  to  just  reproach,  and  are 
fast  losing  what  little  prestige  and  standing  they  have  in  the 
profession,  and  the  liberal  and  enlightened  administration  of  the 
law  by  our  courts  tends  to  the  accomplishment  of  this  end.  In 
Church  investigations,  usually  conducted  and  carried  on  by  min- 
isters of  the  Gospel,  these  practices  and  tricks  of  the  legal  pro- 
fession should  be  carefully  avoided,  in  order  that  the  reproach  of 
the  profession  may  not  fall  upon  them.  It  is  justice,  and  justice 
only,  that  every  administrator  of  the  Discipline  should  look  to 
the  rules  of  law  only  as  guides  to  the  accomplishment  of  that 
purpose. 


Part  Sixth. 
PRINCIPLES  APPLIED. 


CHAPTER  I. 

THE  LEGAL  EVIDENCE  OF  THE  AUTHENTICITY  OF  THE  SCRIPTURES. 

It  is  asserted  by  some  distinguislied  divines  (niifl  claimed  as 
true  by  the  infidel  world),  that  belief  in  the  truths  of  revelation 
is  a  matter  of  faith  and  not  of  evidence ;  or  to  state  the  proposi- 
tion in  another  form,  that  there  is  no  legal  evidence  for  assenting 
juridically  to  the  Bible  as  true,  and  that  because  thereof  we  ought 
not  to  accept  it  as  a  matter  of    belief. 

It  is  difficult  to  define  the  boundary  between  faith  and  evi- 
dence, or  to  say  where  the  one  begins  and  the  other  ends,  or  to 
say  to  what  extent  laith  acts  in  molding  our  belief  in  the  estab- 
lishment of  ari}^  given  fact  or  proposition.  Thus  it  is  every  day's 
practice  in  our  courts  of  justice  to  give  credit  to  the  unimpeached 
testimony  of  a  single  witness,  for  the  reason  that  we  have  fjiith  in 
the  integrity  of  such  witness.  The  pi-oposition,  however,  that  man 
can  believe  without  evidence  is,  to  our 'mind,  not  tenable.  Man 
is  so  constituted  by  nature  that  he  requires  evidence  as  the  basis 
of  belief,  and  it  should  be  the  object  of  all  sound  jurisprudence 
to  render  formal  truth,  as  far  as  possible,  the  reflex  of  real  trutli. 
This  result,  however,  can  only  be  approximately  attained.  What 
is  and  what  is  not  such  evidence  as  may  constitute  tiie  ground  of 
belief  Is  nowhere  legally  determinable,  but  depends  for  its  solu- 
tion upon  the  intelligence  of  the  witness,  his  previously  known 
character  for  truth  and  veracity,  and  other  concomitant  circum- 
stances, and  is  as  variant  as  the  minds  of  men  ;  so  that  it  is 
impossible  to  define  legal  evidence  or  to  distinguish  legal  evi- 
dence from  that  which  is  received  and  acted  upon  by  mankind 
in  general. 

We  do  not  wish  to  be  understood  as  asserting  that  faith  is  not 
an  essential  element  in  molding  and  fashioning  our  belief.  Faith 
429 


430  ECCLESIASTICAL  LAW. 

can  not  exist  without  evidence,  neither  can  evidence  exist  inde- 
pendent of  faitii.  We  are  so  constituted  that  we  incline  to  be- 
lieve, and  this  with  a  child  amounts  almost  to  credulity,  but  is 
weakened  as  we  mingle  in  the  world  and  come  in  contact  with 
falsehood  and  deception.  Credulity  is  often  said  to  be  the  attri- 
bute of  weak  minds  and  unlimited  skepticism  to  those  who  make 
their  own  knowledge  the  exclusive  standard  of  probability.  A 
little  reflection  must  satisfy  every  mind  that  this  kind  of  skepti- 
cal philosophy,  if  carried  out  in  practical  life,  would  undermine 
all  our  social  as  well  as  all  our  legal  and  governmental  relations, 
and  resolve  mankind  back  into  a  state  of  nature.  We  receive 
with  confidence  the  testimony  of  the  historian,  as  we  shall  here- 
after show,  in  regard  to  the  occurrence  of  past  events ;  and  that 
of  the  traveler  and  explorer  with  reference  to  the  state  and  con- 
dition of  otjier  countries;  and  that  of  the  naturalist  in  regard  to 
natural  history. 

We  have  previously  divided  evidence  with  reference  to 
tlie  degrees  of  certainty  necessary  to  our  belief  into  two  parts. 
One  Ave  have  termed  mathematical  certainty,  or  that  degree 
of  certainty  Avhicli  is  capable  of  demonstration  by  the  known 
science  of  mathematics ;  but  even  in  regard  to  mathematical 
certainty,  faith  is  an  essential  ingredient,  especially  with  the 
uneducated  and  illiterate  masses  Avho  have  no  knowledge  of  the 
science ;  their  evidence  rests  upon  faith  in  the  known  skill  and 
integrity  of  the  mathematician  having  capacity  and  opportunity 
for  observation,  and  without  any  apparent  influence  from  passion 
or  prejudice  to  pervert  the  truth.  Thus  the  unlettered  and  un- 
educated who  have  never  comprehended  or  attempted  to  com- 
prehend the  science  of  astronomy,  and  have  no  acquaintance 
with  the  course  of  the  heavenly  bodies,  knowing  nothing  of  their 
transits  and  conjunctions,  or  the  relation  that  the  one  sustains  to 
the  other,  or  the  influence  that  one  of  those  heavenly  bodies  ex- 
erts upon  another,  would  be  confounded  with  the  process  of 
mathematical  calculation  employed  by  the  astronomer  wliile  en- 
gaged in  tracing  out  and  fixing  with  certainty  ten,  twenty,  or  a 
hundred  years  hence  the  exact  moment  for  the  appearance  of  an 
eclipse  of  tiic  sun,  and  whether  partial  or  total,  and  the  exact 
spot  upon  the  earth's  surface  where  such  eclipse  would  be  visible, 
and  the  length  of  time  requisite  for  the  planet's  passing  between 


\ 


AUTHENTICITY  OF  THE  SCRIPTURES.  431 

the  sun  and  the  earth  in  making  its  transit.  Yet  when  such  as- 
tronomer lias  completed  his  investigations  and  calculations  based 
upon  the  known  influence  and  relation  that  one  planet  sustains 
to  another  and  has  declared  the  result,  the  whole  civilized  world, 
with  but  few  in  it  capable  of  comprehending  the  science  or 
capable  of  comprehending  the  process  of  calculation,  research, 
and  reasoning  upon  which  the  astronomer  bases  his  assertion,  be- 
lieves in  the  happening  of  the  event,  and  acts  upon  such  belief;  and 
States  and  nations  fit  out  ships  and  expeditions — as  they  did  a 
few  years  ago — with  corps  of  astronomical  observers  to  go  to  the 
place  designated  and  take  observations,  and  by  that  means  add 
to  the  certainty  and  accuracy  of  the  science.  If  such  astronomer 
is  corroborated  by  other  astronomers  of  known  reputation  who 
have  made  similar  observations,  research,  and  calculations  with 
like  results,  our  belief  is  still  further  strengthened,  and  we  im- 
plicitly trust  those  scientific  experts,  for  the  reason  that  we  have 
confidence  in  their  ability  and  faith  in  the  science,  and  we  see  no 
motive  for  questioning  their  integrity  or  calling  their  veracity 
into  the  account,  and  because  thereof  we  accept  the  fact  and  call 
it  mathematical  certainty  ;  while  to  the  great  mass  of  mankind 
the  evidence  is  based  not  upon  demonstration  but  upon  simple 
faith  and  the  known  and  received  opinion  of  others,  and  the 
known  and  experienced  connection  between  collateral  facts. 

This  is  merely  the  legal  application  of  a  process  familiar  in 
natural  philosophy,  showing  the  truth  of  an  hypothesis  by  its 
coincidence,  whether  such  coincidence  be  physical  or  moral,  and 
whether  the  knowledge  of  it  be  derived  from  others  through 
the  known  laws  of  matter  and  motion,  or  from  the  physical,  in- 
tellectual, and  moral  habits  of  men. 

The  other  degree  of  certainty  may  be  termed  moral  certainty, 
and  as  such  it  is  incapable  of  demonstration,  but  depends  upon 
its  relation  to  other  concomitant  circumstances  that  are  usually 
found  attending  it,  and  is  based  not  only  upon  our  own  experi- 
ence and  observation,  but  upon  the  experience,  observation,  and 
research  of  others.  Thus  we  see  an  animal  with  web  feet,  and 
we  say  of  such  an  animal,  with  a  degree  of  moral  certainty,  that 
it  is  of  aquatic  habits ;  or  we  see  an  animal  with  large  and  sharp 
tusks  or  fangs,  and  we  say  that  it  belongs  to  the  class  of  carniv- 
orous animals.     We  make  this  statement  from  the  known  con- 


432 


ECCLESIASTICAL  LAW. 


nection  existing  between  the  one  and  the  other,  oftentimes  not 
upon  our  own  personal  knowledge  of  the  fact,  but  upon  the 
known  and  received  opinions  of  others,  whose  opinions,  it  may 
be,  are  based  upon  the  opinions  and  experience,  observation  and 
research  of  others  successively,  with  but  comparatively  few  per- 
sons who  have  any  thing  better  than  the  authority  of  others 
for  their  belief  in  the  existence  of  the  fact.  The  number  qual- 
ified to  speak  from  their  own  personal  knowledge  and  experience 
as  to  any  given  event  is  comparatively  few.  We  believe  in 
the  conquests  of  Alexander  and  of  Cajsar ;  we  believe  that 
Greece  was  the  cradle  of  science,  and  that  Rome  gave  civil 
law  to  the  world,  upon  the  statements  made  by  a  few  historians 
who  have  given  research  and  investigation  to  the  subject  of  which 
they  profess  to  treat ;  we  accept  their  statements,  confide  in  tlieir 
integrity,  because  there  is  no  motive  to  deceive,  believe  the  facts 
they  assert  and  act  upon  the  probabilities  of  the  truth  of  their 
assertion.     This  we  call  moral  certainty. 

The  evidence  of  the  authenticity  of  the  Scriptures  belongs  to 
this  latter  class,  or  to  what  we  have  termed  moral  evidence,  and 
the  Scriptures,  from  tlieir  very  nature,  are  incapable  of  any 
higher  degree  of  proof,  but  can  be  as  well  authenticated  in  ac- 
cordance with  the  rules  of  evidence  received  and  acted  upon  in  our 
courts  of  justice  as  any  other  historical  or  traditional  statements. 

Before  proceeding  with  a  further  discussion  of  the  question, 
it  may  be  well  to  institute  an  inquiry  as  to  whether  there  ever 
was,  or  now  is,  a  necessity  for  a  revelation  from  Jehovah  to  man, 
having  in  view  simply  the  welfare  of  the  race.  It  is  claimed  that 
without  a  revelation  from  God,  mankind  would  have  been  able 
to  comprehend  not  only  that  there  is  a  God,  but  that  man  is 
immortal.  This  i)retension,  however,  is  in  strange  contrast 
with  the  idolatrous  worship  and  pollutions  of  the  heathen  Avorld 
as  the  same  are  portrayed  by  St.  Paul  in  the  first  chapter  of 
Romans.  Some  of  the  heathen  nations  adored  the  personifica- 
tion of  heroic  valor,  revenge,  and  cruelty.  The  most  enlight- 
ened and  the  best  cultured  of  all  the  heathen  nations  were 
the  Greeks  and  the  Romans,  and  their  mythologies  abounded 
in  gross  licentiousness,  in  excesses,  and  in  vice.  Reptiles  of  the 
most  loathsome  character  were  deified  as  gods  by  the  Egyptians; 
frightful    idolatry,     and     even     cannibalism,    exist    to-day    in 


AUTHENTICITY  OF  THE  SCRIPTURES.  433 

Polynesia,  and  Western  and  Southern  Africa.  The  ruling  prin- 
ciple that  governed  in  all  the  features  of  paganism  tended  to 
man's  degradation. 

Under  such  a  state  of  moral  prostration,  nothing  short  of  a 
revelation  from  Jehovah  would  arouse  man  from  his  low  state  of 
moral  pollution,  and  stamp  upon  him  the  true  image  of  his  maker. 
It  is  claimed  that  this  result  might  have  been  accomplished 
through  the  increase  of  light  and  knowledge,  but  experience  has 
demonstrated  that  civilization  in  the  heathen  world  was  only  an- 
other name  for  voluptuous  retineraents.  We  venture  the  asser- 
tion that  but  for  the  influence  of  the  Bible,  mankind  would  never 
be  raised  up  to  that  state  or  condition  in  which  they  would  com- 
prehend that  virtue  is  essential  to  happiness.  Whether  there  was 
a  necessity  for  a  revelation  is  a  matter  of  no  importance  provided 
that  God  gave  to  man  a  revelation.  The  necessity  for  it  only 
strengthens  the  probability  that  God  gave  it  to  man.  The 
Bible  professes  upon  its  face  to  be  a  revelation  from  God.  If 
it  be  conceded  that  it  is  not,  but  is  a  Avork  of  mere  human 
production,  then  its  integrity  is  essentially  impaired  and  the 
veracity  of  its  autiiors  impeached. 

Heathen  mythologies  recognized  the  existence  of  sin  in  the 
world,  or  the  existence  of  right  and  wrong;  the  difference  be- 
tween them  and  the  Bible  in  this  respect  is  this, — they  call  evil 
good  and  good  evil;  the  one  is  a  human  standard,  erected  b}'  fal- 
lible creatures  and  bearing  the  impress  of  its  fallibility  upon  its 
face;  the  other  is  a  divine  standard,  iixed  by  God  himself,  ''for 
by  their  fruits  ye  shall  know  them,"  and  the  proof  that  it  is  so 
is  found  in  the  fact  that  the  observance  of  the  principles  of  right 
as  taught  in  the  Bible  are  promotive  of  individual  and  national 
happiness. 

The  Bible  is  the  oldest  authentic  record  in  the  world,  and 
the  fact  that  it  is  so  may  be  gathered  from  heathen  mythologies 
and  pagan  history.  These  contain  a  recognition  of  some  of  the 
teachings  of  the  Bible;  not,  indeed,  found  in  their  original  pur- 
i  y,  but  mingled  with  their  heathen  pollutions.  We  have  in  the 
Bible  very  early  traces  of  the  law  of  sacrifices,  consisting  of  the 
choicest  of  the  flock,  as  typical  of  the  sacrifice  that  was  to  be 
made  on  Calvary  by  the  Son  of  God  for  the  sin  of  the  world. 
We  have  in  heathen  mythologies,  instead  of  the  heifer,  the  goat, 


434 


ECCLESIASTICAL  LAW. 


or  the  dove,  human  sacrifices  offered  for  the  purpose  of  appeas- 
ing the  supposed  wrath  of  their  deities.  We  liave  in  the  Bible 
an  account  of  the  institution  of  the  family,  the  patriarchal  and 
governmental  relations.  We  have  in  the  pagan  world,  though 
imperfectly  observed,  the  same  relations.  We  have  in  the  Bible 
a  sovereign  power  asserted  by  God  over  his  creatures  for  their 
moral  government,  and  at  one  time  for  their  municipal  govern- 
ment ;  we  have  in  the  heathen  world  an  acknowledgment  of  de- 
pendence, and  the  recognition  of  sovereign  power  existing  not 
de  jure,  but  in  their  imaginations.  All  of  these  are  so  many 
corroborating  circumstances  tending  to  establish  the  authenticity 
of  the  Scriptures. 

Man,  wherever  found,  under  whatever  state  or  condition,  is 
essentially  a  worshiper.  It  has  been  so,  as  far  as  we  have  any 
trace  from  the  first  ages  down  to  the  present  time.  The  most 
exalted  intellect,  the  lowest  created  intelligence,  recognize  this 
universal  law,  and  bow  with  adoring  homage  to  either  a  real  or 
an  imaginary  superior  being.  This  acknowledgment  on  the  part 
of  mankind  is  strong  proof  of  man's  inferiority,  and  of  his  de- 
pendency, and  is  consistent  Avith  the  account  of  man's  fall  by  rea- 
son of  transgression  as  given  in  the  Bible.  Man  is  represented 
by  reason  of  sin  as  being  involved  in  misery,  and  incapacitated 
for  the  service  and  fellowship  of  God,  obnoxious  to  his  judgment, 
and  liable  to  punishment  in  a  future  and  eternal  state  of  being; 
and  in  consequence  of  this  deporable  state,  feeling  his  weakness 
and  realizing  his  dependence,  he  seeks  for  guidance  and  direc- 
tion. This  dependence  seems  to  be  firmly  engrafted  in  his  very 
nature,  and  constitutes  a  strong  argument  in  favor  of  the  account 
of  man's  original  transgression  as  recorded  in  the  book  of  Genesis. 

The  Bible  contains  an  account  of  the  call  of  Abraham,  his 
separation  from  his  brethren,  and  the  history  of  his  descendants, 
constituting  the  Jewish  nation,  together  with  prophetic  declarations 
that  his  seed  should  become  great,  and  that  kings  should  come 
out  of  his  loins;  that  is,  in  legal  parlance,  that  he  should  be  the 
common  ancestor  of  the  kings  of  Israel  and  Judea,  and  that  his 
seed  should  sojourn  in  a  strange  land.  Profane  history  is  re- 
plete with  the  recognition  of  the  fulfillment  of  this  part  of  the 
prophetic  Scriptures.  We  have  the  descendants  of  Abraham, 
the  Jewish  people,  scattered  every-where  in  our  midst  and  in  the 


AUTHENTICITY  OF  THE  SCRIPTURES.  435 

midst  of  foreign  nations.  They  have  ceased  to  be  a  nation  in 
the  generic  sense  of  the  term,  and  yet  they  have  never  lost  the 
peculiarities  ascribed  to  them  in  the  Scriptures,  as  characteristic 
of  their  nationality.  That  there  were  such  men  as  Abraham, 
Isaac,  and  Jacob,  and  that  they  are  not  merely  mythical  charac- 
ters ;  that  the  Israelites  were  divided  into  tribes,  that  they  went 
down  into  Egypt  and  sojo.urned  there,  and  afterwards  took  pos- 
session of  part  of  the  land  of  Palestine,  driving  out  the  nations 
that  were  there  before  them,  built  cities,  had  a  regularl}'  organ- 
ized government,  engaged  in  wars  with  surrounding  nations,  had 
internal  dissensions,  built  a  temple  and  dedicated  it  to  Jehovah, 
commemorated  their  deliverance  from  Egyptian  bondage  by  an 
annual  feast  called  the  feast  of  the  Passover,  are  abundantly  cor- 
roborated and  established  by  profane  history,  and  by  Josephus ;  and 
no  historian  of  an}'  respectability  would  venture  to  call  these  and 
like  facts  recorded  in  the  Bible  in  question.  Coming  down  to  a 
later  period,  we  have  authentic  evidence  that^  the  Jewish  nation 
were  subjugated  by  the  Romans,  and  that  the  Romans  divided  their 
territory  into  tetrarchies,  and  appointed  kings,  procurators,  and 
governors  over  them,  and  exacted  tribute  to  be  paid  by  them  to 
Rome ;  that  during  the  time  the  Jews  were  subject  to  the  Roman 
government,  the  Romans,  according  to  their  usual  custom  in  deal- 
ing with  subjugated  provinces,  permitted  them  to  observe  their 
religious  rites  and  ceremonies,  including  their  feasts,  that  were 
never  remitted  from  the  time  they  came  out  of  Egypt  up  to  and 
including  the  destruction  of  their  temple  by  Titus.  ^ 

^  "When  CtEsar  had  settled  the  affairs  of  Syria  he  sailed  away,  and  as  soon  as 
Antipater  had  conducted  Cfesar  out  of  Syria  he  returned  to  Judea.  He  then 
immediately  raised  up  the  wall  which  had  been  thrown  down  by  Pompey,  and, 
by  coming  hither,  he  pacified  that  tumult  which  had  been  in  the  country,  and 
this  by  both  threatening  and  advising  them  to  be  quiet,  for  that  if  they  should 
be  of  Hyrcanus's  side  they  would  live  happily  and  lead  their  lives  without  dis- 
turbance in  the  enjoyment  of  their  own  possessions ;  but  if  they  were  addicted  to 
the  hopes  of  what  may  come  by  innovation,  and  aim  to  get  wealth  thereby,  they 
should  have  a  severe  master  instead  of  a  gentle  governor,  and  Hyrcanus  a 
tyrant  instead  of  a  king,  and  the  Romans,  together  with  Cfesar,  their  bitter  ene- 
mies, for  that  they  would  never  bear  him  to  be  set  aside  whom  they  had  ap- 
pointed to  govern ;  and  when  Antipater  had  said  this  to  them  he  settled  the 
affairs  of  this  country."     Joseplnis's  "Antiquities  of  the  Jews,"  page  28(>. 

'^  "So  Titus  retired  into  the  tower  of  Antonia,  and  resolved  to  storm  the  tem- 
ple the  next  day,  early  in  the  morning,  with  his  whole  army,  and  to  encamp 


436  ECCLESIASTICAL  LAW. 

The  books  of  Chronicles  give  a  long  list  of  the  names  of 
families,  tracing  carefully  the  line  of  descent,  and  their  tribal  re- 
lations. These  lists  Avere  made  up  and  carefully  preserved  with 
a  view  to  the  service  of  the  tabernacle  and  afterwards  of  the 
temple,  which  service  was  regularly  conducted  by  course.  This 
mode  of  conducting  the  service  was  observed  from  the  time  of 
David  and  Solomon,  according  to  the  Scripture  account,  down  to 
tlie  coming  of  Christ.  St.  Luke,  in  tlie  first  chapters  of  his  Gospel, 
speaks  of  Zachariah,  the  father  of  John  the  Baptist,  as  belonging 
to  the  course  of  Abia,  which,  by  reference  to  Chronicles,  will  be 
found  to  be  the  eighth  course  of  those  who  ministered  around  the 
temple.  Josephus  speaks  of  those  courses,  thereby  corroborat- 
ing the  account  given  by  St.  Luke. 

It  is  perfectly  consistent  with  the  history  of  nations  and  Ijheir 
course  of  procedure  that  a  record  and  an  authentic  record  should 
have  been  kept  and  carefully  preserved  by  the  Jews,  in  which 
should  be  enrolled  all  the  principal  political  and  religious  events 
of  the  nation,  including  the  division  of  the  tribes,  the  installation 
of  kings  and  of  priests,  their  foreign  and  domestic  wars,  the  build- 
ing and  destruction  of  the  temple,  the  enrollment  of  their  laws, 
with  such  other  public  events  as  were  esteemed  by  them  worthy 
of  being  commemorated,  Avhether  they  related  to  prophecies  or 
the  fulfillment  of  prophecy.     These  records  thus  kept  were  not 

round  about  the  holy  house.  But  as  for  that  house,  God  had  for  certain  long 
ago  doomed  it  to  the  fire,  and  now  that  fatal  day  was  come,  according  to  the 
revolution  of  ages;  it  was  the  tenth  day  of  the  month  Lons,  upon  which  it  was 
formally  burnt  by  the  king  of  Babylon,  although  these  names  took  their  rise 
from  the  Jews  themselves,  and  were  occasioned  by  them,  for  upon  Titus's  retir- 
ing, the  sedition  lay  still  for  a  little  while,  and  then  attacked  the  Romans  again, 
when  those  that  guarded  the  holy  house  fought  with  those  that  quenched  the  fire 
that  was  burning  the  inner  [court  of  the]  temple;  but  these  Romans  put  the 
Jews  to  flight,  and  proceeded  as  far  as  the  holy  house  itself.  At  which  time  one 
of  the  soldiers,  without  staying  for  any  orders,  and  without  any  concern  or  dread 
upon  him  at  so  great  an  undertaking,  and  being  hurried  only  by  a  certain  divine 
fury,  snatched  somewhat  out  of  the  materials  that  were  on  fire,  and,  being  lifted 
up  by  another  soldier,  set  fire  to  a  golden  window  through  which  there  was  a 
passage  to  the  rooms  that  were  round  about  the  holy  house,  on  the  north  side  of 
it.  As  the  flames  went  upward,  the  Jews  made  a  great  clamor,  such  as  so 
mighty  an  aSliction  required,  and  ran  together  to  prevent  it,  and  now  they 
spared  not  their  lives  any  longer,  nor  suffered  any  thing  to  restrain  their  force, 
since  that  holy  house  was  perishing,  for  whose  sake  it  was  that  they  kept 
Buch  a  guard  about  it."     Joscjjhus's  "Wars  of  the  Jews,"  book  G,  chap.  4,  p.  555. 


AUTHENTICITY  OF  THE  SCRIPTURES.  437 

records  of  private  but  of  public  acts,  known  at  the  time  to  the 
entire  nation  at  large,  and  the  fact  that  the  original  enrollments 
are  lost,  destroyed,  or  worn  out,  can  not  impair  their  verity,  or 
the  verity  of  authenticated  copies.  It  is  every  day's  practice  to 
admit  authenticated  copies  of  public  records,  to  be  read  in  evi- 
dence without  requiring,  as  we  have  previously  shown,  the  p<-o- 
duction  of  the  original,  or  without  accounting  for  its  loss  or  de- 
struction— in  this  respect,  making  a  distinction  between  the  rule 
as  applied  to  public  and  private  writings  ;  and  this  distinction  is 
well  founded  in  the  very  nature  of  things.  The  knowledge  of 
what  is  contained  in  a  private  writing  is  ordinarily  limited  to  the 
parties  interested  in  the  writing,  or  at  least  the  knowledge  of  the 
contents  of  a  private  writing  is  confined  to  a  few  persons.  In  a 
a  public  record  enrolling  public  events  it  is  far  otherwise;  the  en- 
tire public  are  interested  in  having  an  authentic  and  faithful  rec- 
ord of  what  is  transpiring,  which  concerned  the  public  at  large, 
as  private  parties  are  interested  in  having  an  authentic  state- 
ment in  writing  of  what  pertained  to  their  private  transactions. 
It  would  not  do  to  suppose  that  the  records  of  a  nation  were 
falsely  reported ;  on  the  contrary,  every  intendment  is  in  favor 
of  their  verit}',  and  under  most  circumstances,  such  is  the  weight 
and  authority  of  these  public  records,  that  they  are  not  allowed 
among  civilized  nations  to  be  called  in  question  judicially,  but  on 
the  contrary,  their  authenticity  is  conclusively  presumed.  The 
Old  Testament  Scriptures  profess  or  purport  to  be  copies  from 
such  authentic  records,  properly  reported  and  carefully  preserved 
by  the  Jewish  nation,  and  it  matters  very  little  in  this  view  of  the 
question  whether  they  were  transcribed  by  one  person  or  another; 
the  more  important  question  being,  are  the  copies  faithful  tran- 
scripts of  the  originals  ? 

The  relation  that  the  Jewish  Church  sustained  to  the  civil 
government,  even  after  they  desired  and  obtained  a  king,  was 
very  close  and  peculiar,  so  that  the  one  was  inseparably  inter- 
Avoven  with  the  other.  The  history  of  the  Churcli  was  the  his- 
tory of  the  Jewish  nation,  and  the  history  of  the  nation  comprised 
the  history  of  the  Church  ;  their  feasts,  their  sacrifices,  the  wor- 
ship of  the  temple,  and  the  administration  of  the  civil  affairs  of 
the  nation,  were  all  blended  together ;  their  government,  origi- 
nally thcocratical  in  form,  ordained  of  God  and  set  up  by  Moses 

29 


438  ECCLESIASTICAL  LAW. 

after  they  liad  thrown  off  the  yoke  of  their  Egyptian  task-mas- 
ters, and  while  they  were  in  the  wilderness  at  the  foot  of  Sinai, 
contributed  to  produce  such  a  result.  The  Bible  represents  that 
that  government  was  heralded  to  the  people  by  the  prolonged 
blast  of  the  trumpet,  the  quaking  of  the  mountain,  and  the  voice 
of  Jehovah  heard  from  the  midst  of  the  smoke  and  thick  dark- 
ness. It  was  authoritatively  given,  accompanied  with  all  the 
insignia  of  power,  and  solemnly  ratified,  in  a  democratic  form, 
by  a  convention  of  the  entire  people,  each  one  professing  fealty 
and  obedience  for  himself;  and  no  Jew  has  ever  doubted  the 
authenticity  of  these  enactments  or  proposed  to  separate  between 
that  which  pertained  to  their  religious  duties  and  their  civil 
rights ;  and  instead  of  being  kept  distinct  they  were  always  re- 
garded by  the  Jewish  nation  as  being  inseparably  united,  and  one 
was  just  as  authoritative  as  the  other. 

It  was  Samuel,  ordained  a  prophet  of  God,  clothed  with  both 
civil  and  ecclesiastical  authority,  that  poured  the  anointing  oil  on 
the  head  of  Saul,  and  afterwards  on  the  head  of  David,  anointing 
them  successively  as  kings  over  Israel.  But  their  government, 
Avhile  it  had  the  effect  to  destroy  the  theocratical  form,  did  not 
displace  the  service  of  Jehovah.  Their  prophecies,  and  every 
thing  that  pertained  to  their  religious  rites  and  ceremonies,  in- 
cluding songs,  all  continued  to  be  enrolled  and  of  public  record, 
and  were  as  much  a  part  of  the  authentic  records  of  the  Jews  as 
the  enrollment  of  the  names  of  their  kings,  and  therefore  equally 
entitled  to  credit  according  to  our  modern  received  and  recog- 
nized rules  of  evidence. 

We  have  had  occasion  to  call  attention  to  certain  things  that 
courts  ex  officio  take  notice  of  without  proof;  not  that  proof  was 
not  essential  to  establish  their  existence,  but  the  questions  have 
been  so  often  before  the  court  for  their  investigation,  and  the 
proof  has  been  so  often  offered  and  received,  and  the  judicial 
mind  has  become  so  familiar  with  the  fact,  that  the  court  con- 
siders the  question  as  stare  decisis,  and  therefore  no  longer  the 
subject  of  inquiry.  This  is  the  rule  that  for  more  than  a  thou- 
sand years — first  in  England  and  then  in  this  country — has  ob- 
tained with  reference  to  the  authenticity  of  the  Scriptures;  and 
so  firmly  is  it  imbedded  in  our  national  polity,  that  our  entire 
judicial  system  is  founded  upon  it,  and  no  judge  or  court  sitting 


AUTHENTICITY  OF  THE  SCRIPTURES.  439 

judicially  would  now  permit  their  genuineness  to  be  called  in 
question  any  more  than  they  Avould  suffer  an  inquiry  in  this  coun- 
try into  the  original  charters  of  the  Colonies,  or  in  England  an 
inquiry  into  the  genuineness  of  the  Ilagna  Charta.  The  original 
manuscript  upon  which  the  whole  theory  of  English  liberty  is 
based  has  been  lost,  destroyed,  or  worn  out  by  the  lapse  of  time, 
and  the  evidence  of  it  rests  upon  the  basis  of  successive  judicial 
and  historical  recognition,  being  now  evidenced  by  the  writings 
of  distinguished  sages  in  the  law,  and  by  the  reports  containing 
decisions  of  the  courts.  What  lawyer  or  judge,  finding  tlie  deci- 
sion of  a  question  by  the  court,  together  with  the  names  of  the 
parties,  would  doubt  the  genuineness  thereof  if  such  decision 
comes  down  to  us  reported  in  the  Year  Books,  or  even  if  the 
same  was  taken  by  some  elementary  author  of  known  reputation 
as  having  been  recorded  therein  ?  We  believe  the  assertion  not 
because  we  have  seen  and  examined  the  Year  Books,  but  because 
we  have  confidence  in  the  integrity  of  the  author,  and  know  of 
no  motive  prompting  him  to  deceive. 

The  original  manuscripts  written  by  the  authors  of  the  sacred 
Scriptures  have  been  lost  or  destroyed,  yet  the  integrity  of  the 
text  has  been  carefully  preserved  to  us,  and,  in  addition,  it  has 
received  the  authoritative  recognition  of  the  JeAvish  and  Chris- 
tian Churches  from  the  time  of  Moses  and  Ezra  down  to  the 
present,  No  orthodox  Jew  has  ever  doubted  the  Old  Testament 
Scriptui'es,  and  no  Christian  Church  has  doubted  tlie  New  Testa- 
ment Scriptures ;  and  to-day  both  are  as  well  authenticated, 
legally,  as  any  genuine  historical  fact  can  be,  in  view  of  the  long- 
lapse  of  time  that  has  intervened  from  their  commencement  down 
to  the  present  time.  That  the  Scriptures  come  from  the  proper 
Jewish  and  Christian  repositories,  as  we  have  previously  shown, 
has  never  been  questioned,  and  that  those  repositories  claim  them 
to  be  authentic  has  never  been  questioned,  and  that  this  would  be 
a  sufficient  foundation  for  their  admissibility  in  evidence 
if  the  question  of  their  genuineness  was  res  Integra  is  well 
settled  by  adjudication,^  independent  of  all  other  corroborating 
circumstances. 

^  Bishop  of  Math  v.  The  Marquis  of  Winchester,  1  Bingham's  N.  C- 
185,200,201;  1  Starkie  on  Evidence,  3^2,  335,  381,  380;  Doe  v.  Phillips^ 
10  Juris,  page  34;    Crovghton  v.  Blake,  12  Ness  &  Welch,  205. 


440  ECCLESIASTICAL  LAW. 


We  Avill  now  call  attention  to  a  few  elementary  and  well  con- 
sidered principles  in  the  law  of  evidence  which  come  down  to  us 
through  a  succession  of  ages,  having  received  the  sanction  and 
approval  of  tlie  best  legal  minds  in  Europe  and  America,  and 
which  have  been  found  essential  guides  to  the  attainment  of 
truth.  One  of  these  rules  is,  that  the  law  presumes  every  person 
to  be  innocent  of  crime  or  >vrong,  every  person  to  be  honest,  and 
every  witness  to  be  credible  ;  and  it  devolves  the  burthen  of 
proof  upon  the  party  charging  the  crime,  imputing  the  wrong,  or 
attacking  the  veracity  of  the  witness.  Courts  of  justice  act  upon 
this  principle  even  where  life,  liberty,  property,  and  reputation 
are  involved  ;  and  they  are  judicially  bound  to  receive  as  true 
and  to  act  upon  the  unimpeached  testimony  of  a  single  witness. 

This  rule  of  evidence  is  based  upon  the  known  disposition  of 
mankind  to  speak  the  truth  rather  than  to  give  utterance  to  false- 
hood Avhere  there  is  no  motive  to  deceive.  That  some  men  do 
commit  crime,  that  some  men  do  commit  wrong,  and  tliat  some 
men  do  depose  to  falsehood,  is  an  admitted  fact ;  but  few  men 
commit  crime  publicly  or  testify  falsely  to  facts  that  are  publicly 
known,  and  but  few  witnesses  are  so  abandoned  as  to  be  guilty 
of  perjur}'  where  there  is  no  motive  to  deceive  and  where  the 
witness  is  without  bias  or  interest. 

There  is  another  rule  of  evidence  that  stands  in  intimate  re- 
lation with  the  one  under  previous  consideration;  that  is,  that 
ordinarily,  testimony  entitled  to  judicial  belief  must  be  given 
under  the  solemn  sanction  of  an  oath  administered  under  forms 
of  law,  or  at  least  some  kind  of  sanction  or  admonition  must 
be  administered  to  the  witness  to  speak  the  truth.  An  exception 
to  this  rule  is  allowed  where  a  party  makes  a  statement  or  con- 
fession against  or  prejudicial  to  his  own  interest.  Experience  has 
proved  that  men  are  not  ordinarily  so  indifferent  to  their  own  in- 
terest as  to  make  statements  prejudicial  to  them  falsely.  Where 
tliere  is  no  apparent  motive  for  making  a  false  statement  or  giv- 
ing utterance  to  falsehood,  the  law  receives  such  statements  as 
true  Aviien  made  against  intei-est  without  oath  or  affirmation  or 
(ither  ancillary  proof.  Men  sometimes  make  statements  prejudi- 
cial to  their  own  interests  where  they  are  prompted  so  to  do  by  a 
desire  to  speak  the  truth,  the  love  of  truth  being  stronger  with 
them  than  the  love  of  gain  or  benefit. 


AUTHENTICITY  OF  THE  SCRIPTURES.  441 

There  is  another  rule  of  evidence  recognised  in  our  municipal 
courts;  that  is,  that  witnesses  must  ordinarily  be  able  to  speak  to 
facts  within  their  own  personal  knowledge  and  are  not  allowed  to 
make  their  statements  based  upon  hearsay.  All  hearsay  is  not  nec- 
essarily false,  but  is  of  less  weight  and  entitled  to  less  credit  than 
direct  primary  evidence,  and  from  its  very  nature  it  is  not  sub- 
ject to  the  legal  tests  of  the  oath  and  cross-examination.  Another 
ground  of  exclusion  is,  that  the  law  presumes  better  evidence  to 
be  in  existence,  where  the  facts  deposed  to  are  of  recent  date, 
and  within  the  memory  of  witnesses  living.  To  this  rule  there 
are,  however,  numerous  exceptions,  founded  upon  the  necessities 
of  the  case ;  thus,  where  better  evidence  is  not  presumed,  owing 
to  the  lapse  of  time,  to  be  in  existence,  hearsay  evidence,  like 
secondary  evidence,  where  primary  evidence  is  lost  or  destroyed, 
is  receivable,  and  is  often  resorted  to,  especially  in  proof  of 
traditionary  or  historical  facts. 

Testing  the  credibility  of  the  authors  of  the  sacred  Scriptures 
by  the  rules  of  evidence  recognized  in  our  civil  courts,  it  is 
apparent  that  instead  of  being  compelled,  if  they  were  the  sub- 
jects of  legal  investigation,  to  prove  their  authenticity,  we  would 
be  able  to  devolve  the  burthen  of  proof  upon  the  party  attempt- 
ing their  impeachment.  Their  existence  and  their  coming  from 
the  proper  repositories,  prima  facie  and  in  legal  contemplation,  is 
sufficient  to  establish  the  fact,  and  as  we  have  previous!}^  seen,  a 
prima  facie  case  or  presumption  is  always  deemed  in  law  suffi- 
cient, until  it  is  overcome  by  countervailing  testimony.  The 
Scriptures  are  well  supported  and  authenticated  by  concomitant 
and  corroborating  circumstances,  and  have  never  been  success- 
fully impeached ;  although  in  one  form  or  another  they  have  been 
successively  attacked  by  the  infidel  world;  and  in  making  such 
attacks  it  has  been  contended  that  the  rules  of  evidence  add  no 
additional  strength  or  support  to  their  authenticity;  for  the  rea- 
son that  such  rules  are  drawn  from  the  Scriptures  themselves  and 
therefore  they  are  not  fair  and  inftillible  tests.  Infallil)ility  is  not 
claimed  for  them ;  but  what  is  claimed  is,  that  the  experience  of 
mankind  has  demonstrated  their  utility.  We  receive  the  accounts 
that  are  given  us  by  profane  historians  of  the  existence  of  the 
Egyptians,  Persians,  Assyrians,  Greeks,  and  Romans,  including 
the  account  of  their  manners,  customs,  laws   and  religion,  on  the 


442  ECCLESIASTICAL  LAW. 


faith  of  historians,  without  any  other  corroborating  circumstances, 
except  such  corroborations  as  are  found  in  the  Bible. '  There  is  a 
strange  inconsistency  manifest  in  intidel  criticism;  with  reference 
to  corroboration,  they  are  Avilling  to  allow  the  Scriptures  to  corrob- 
orate profane  history,  but  they  are  unwilling  to  permit  profane 
history  to  corroborate  the  Bible.  In  point  of  fact,  however,  pro- 
fane history  corroborates  the  Bible,  and  the  Bible  corroborates 
profane  history. 

We  call  attention  to  the  writings  of  the  four  evangelists,  as 
they  are  termed,  each  one  of  whom  states  some  things  in  the 
same  series  of  facts  that  are  corroborated  by  the  others;  two  of 
whom  at  least,  according  to  their  own  statement,  were  eye-wit- 
nesses of  the  facts  they  have  solemnly  recorded,  or  at  least  of 
many  of  the  facts.  Conceding  for  the  sake  of  the  argument  that 
the  other  two  were  not  present  and  did  not  witness  the  events  and 
miracles  they  record,  still  tlieir  statements  are  made  with  reference 
to  events  publicly  known,  in  which  time,  place,  and  persons  are 
given  with  minutiae  of  detail.  Their  Gospels  would  at  least  be 
entitled,  viewed  from  a  legal  stand-point,  to  historical  credibility, 
for  the  reason  that  they  were  contemporary  with  the  events 
Avhich  they  record,  and  St.  Luke  says,  in  the  introduction  to  his 
Gospel,  that  he  had  a  perfect  knowledge  of  the  facts ;  how  he  ob- 
tained them,  whether  by  being  present,  or  whether  by  hearing 
them  repeatedly  narrated  by  those  who  were  present  and  wit- 
nessed tliem,  or  whether  by  inspiration,  is  a  matter  of  little  im- 
portance in  this  view  of  the  question. 

When  we  come  to  compare  his  statement  and  Gospel  Avith 
those  of  the  other  evangelists,  it  Avill  be  found  that  each  one  of 
those  Gospels  or  the  principal  incidents  are  corroborative  the  one 
of  the  other  in  every  essential  particular.  If  Christ  raised  the 
dead,  healed  the  sick,  cleansed  the  leper,  calmed  the  elements, 
opened  the  eyes  of  the  blind,  and  unstopped  the  ears  of  the  deaf, 

^  Historical  fncts  of  general  and  public  noteriety  may  indeed  be  proved  by 
reputation,  and  that  reputation  may  be  established  by  historical  works  of  known 
character  and  accuracy,  but  evidence  of  this  sort  is  confined  in  a  great  measure 
to  ancient  facts  which  do  not  presuppose  better  evidence  in  existence,  and  where 
from  the  nature  of  the  transaction,  or  the  remoteness  of  the  period,  or  the  pub- 
lic and  general  reception  of  tlie  facts  a  just  foundation  is  laid  for  general  confi- 
dence. Morris  ci  ul.  v.  Harmers  Heirs,  10  Curtis,  Dis. ;  1  Starkie's  Evidence, 
pp.  60-64. 


AUTHENTICITY  OF  THE  SCRIPTURES.  443 

drove  out  the  money  changers  from  the  court  of  the  temple,  over- 
threw the  seats  of  those  who  sokl  doves,  confounded  the  Jewish 
doctors  of  the  law,  silenced  their  priests,  was  arrested,  tried, 
sentenced  to  death,  crucified,  if  darkness  was  over  the  land 
for  the  space  of  six  hours,  and  the  veil  of  the  temple  was  rent, 
if  he  was  buried,  and  on  the  third  day  rose  from  the  dead  and 
appeared  to  the  eleven  disciples,  and  afterward  to  about  five 
hundred,  it  will  not  do  to  believe  that  these  facts  were  not  so 
well  and  publicly  known  and  so  authentic,  not  only  in  tlieir 
essential  features,  but  in  all  their  minutiae  of  detail,  that  it 
would  have  been  impossilde  to  write  any  history  or  account  of 
those  events  which,  if  false  or  incorrect  in  any  particular,  would 
not  have  at  once  been  detected,  provided  such  accounts  were 
written  during  the  memory  of  living  witnesses.' 

That  there  are  slight  discrepancies  in  the  statements  of  the 
four  evangelists  has  not  escaped  the  attention  of  infidel  critics, 
who  have  so  closely  analyzed  every  section  and  verse  and  noted 
every  apparent  discrepancy,  so  that  in  the  Bible  they  pretend  to 
estimate  the  number  at  not  less  than  120,000;  the  most  of  these, 
however,  occur  in  the  Old  Testament  Scriptures,  and  a  very 
large  proportion  consist  of  differences  of  spelling  and  isolated 
aberrations  of  scribes,  and  of  the  remainder  comparatively  few 
are  sufficiently  well  supported  to  create  reasonable  doubt.  To 
the  legal  mind  those  slight  discrepancies  raise  a  strong  circum- 
stantial presumption  in  favor  of  their  genuineness  and  in  favor 
of  the  integrity  and  veracity  of  the  authors.  No  two  witnesses, 
however  honest  and  however  capable,  viewing  the  same  transac- 
action,  agree  as  to  the  exact  minutise  of  detail.  If  the  Gospels 
had  been  written  by  the  same  author,  or  if  they  had  been  care- 

^  It  seems  reasonable  to  conclude  tliat  the  autoj^raphs  perished  during  that 
solemn  pause  which  followed  the  apostolic  age,  in  which  the  idea  of  a  Christian 
canon,  parallel  and  supplementary  to  the  Jewish  canon,  was  first  distinctly  real- 
ized. In  the  time  of  the  Diocletian  persecutions,  A.  D.  303,  copies  of  the  Christian 
Scriptures  were  sufficiently  numerous  to  furnish  a  special  object  for  persecutors, 
and  a  characteristic  name  to  renegades  who  saved  themselves  by  surrendering 
the  sacred  books.  Partly,  perhaps,  owing  to  the  destruction  tiius  caused,  but 
still  more  from  the  natural  effects  of  time,  no  manuscrijit  of  the  New  Testament 
of  the  first  three  centuries  remains.  Some  of  the  oldest  e.xtant  were  certainly 
copied  from  others  which  dated  from  witliin  this  period;  but  as  yet  no  one  can 
be  placed  further  back  than  the  time  of  Constantine.     Smith's  Bible  Die.  p.  G15. 


444  ECCLESIASTICAL  LAW. 

fully  revised  and  corrected,  tlie  one  by  the  otlier,  these  apparent 
slight  discrepancies  would  not  be  observable.  An  exact  agree- 
ment might  induce  the  belief,  founded  on  human  experience,  that 
there  was  collusion  between  them  in  giving  their  testimony,  and 
instead  of  imparting  credence  to  the  Gospels  it  would  obviously 
tend  to  discredit  them.  The  teachings  of  Christ  were  not  pri- 
vate, nor  were  his  miracles  privately  performed,  neither  were  the 
incidents  recorded  in  the  Gospels  fixed  as  taking  place  in  some 
obscure,  remote,  or  rural  district,  away  from  the  principal  cities 
of  Judea  and  Samaria;  on  the  contrary,  the  great  events  that  are 
ascribed  to  him  by  the  evangelists  are  described  as  taking  place 
in  Jerusalem,  Samaria,  Capernaum,  and  other  principal  cities. 
When  he  Avas  inquired  of  by  the  high-priest  with  reference  to 
his  teachings  and  doctrine  his  reply  was.  Ask  them  that  heard  me. 
He  is  represented  as  teaching  openly  in  the  temple,  in  the  syna- 
gogues, in  the  streets,  and  along  public  thoroughfares.  His  mir- 
acles are  also  represented  as  having  been  publicly  wrought.  He 
came  in  contact  with,  and  addressed,  all  classes,  the  rich  and  the 
great,  as  well  as  the  humble  and  poor,  the  learned  and  the  un- 
learned, the  proud  and  haughty  Pharisee  and  the  skeptical  Sad- 
ducee.  Such  was  the  publicity  of  his  life,  of  his  miracles,  and 
of  his  ministration,  that  deception  or  falsehood  with  reference 
to  them  was  impossible.  The  accounts  given  by  those  evan- 
gelists are  therefore  either  substantially  true  in  all  essential  fea- 
tures, or  they  are  unworthy  of  judicial  belief;  there  is  no  middle 
ground  to  occupy  when  viewed  from  a  legal  stand-point.  A  rule 
of  evidence  founded  on  experience  is  that  where  a  witness  know- 
ingly and  willfully  deposes  to  a  falsehood  in  any  material  matter, 
he  is  not  worthy  of  credit,  and  courts  of  justice  under  such  cir- 
cumstances uniformly  where  such  witness  is  not  corroborated  by 
other  competent  and  reliable  evidence,  reject  the  testimony.  The 
evangelists  have,  therefore,  no  room  for  presumption  of  innocence 
if  their  testimony  is  partially  false ;  they  record  the  facts  as 
being  within  their  own  personal  knowledge,  and  not  only  within 
their  own  personal  knowledge,  but  within  the  personal  knowledge 
of  thousands  of  others.  Thus,  when  Christ  miraculously  fed  five 
thousand  in  the  desert,  the  whole  multitude  comprehended  the 
fact ;  when  he  turned  the  water  into  wine  at  the  feast  of 
the  marriage  in  Cana  of  Galilee,  all  the  guests  assembled  to 


AUTHENTICITY  OF  THE  SCRIPTURES.  445 


witness  the  ceremony  knew  that  a  miracle  liad  been  wrouglit. 
When  he  called  Lazarus  from  the  dead  the  Jews  are  represented 
as  standing  around  witnessing  the  display  of  divine  power. 
When  he  opened  the  eyes  of  the  blind  man  by  anointing  them 
with  clay  and  sending  him  to  the  pool  of  Siloam  to  wash  and  re- 
ceive sight,  a  miracle  is  represented  as  having  been  the  theme 
of  discussion  by  the  officers  and  priests  that  ministered  around 
the  temple. 

The  Jewish  Church,  or  Judaism,  is  described  by  the  evan- 
gelists as  being  alarmed  at  the  progress  that  his  ministry,  and 
the  displa}^  of  divine  power  so  repeatedly  witnessed  by  them 
had  made ;  and  because  thereof  they  sought  occasion  to  entrap 
him  so  that  they  might  bring  an  accusation  against  him.  There- 
fore, as  if  for  information,  they  inquired  whether  it  was  lawful 
to  pay  tribute  to  Caesar,  hoping  that  he  would  call  in  question  the 
authority  of  the  Roman  government,  and  by  that  means  secure 
his  condemnation.  The  principal  men  of  the  nation  are  charged 
bv  the  evangelists  as  having  entered  into  a  conspiracy  against 
Christ  to  put  him  to  death  without  cause.  For,  according  to 
Josephus,  he  was  a  good  man.^ 

If  all  these  statements  were  false,  and  if  the  charges  contained 
in  the  Gospels  that  the  Jews  wickedly  conspired  against  him  were 
untrue,  they  would  have  met  with  immediate  and  successful  ref- 
utation. Is  it  possible  that  Christ  could  have  been  brought  before 
the  Jewish  council,  sent  by  them  to  Pilate  and  b}'  Pilate  to  Herod, 
and  from  Herod  back  to  Pilate,  condemned,  crucified,  and  when 
dead,  buried,  and  after  lying  in  the  grave  three  days  to  have 
risen  from  the  dead,  and  especially  with  all  the  attendant  cir- 
cumstances, without  all  Jerusalem  and  all  the  regions  round 
about,  and   the   strangers   that  were   in   Jerusalem  at   the  time 

^  "Now  there  was  about  tliis  time  Jesus,  a  wise  man,  if  it  be  lawful  to  call 
him  a  man,  for  he  was  a  doer  of  wonderful  works,  a  teacher  of  such  men  as  re- 
ceived the  truth  with  pleasure.  He  drew  over  to  him  both  many  of  the  Jews 
and  many  of  the  Gentiles.  He  was  [the]  Christ.  And  when  Pilate,  at  the  sug- 
gestion of  the  principal  men  among  us,  had  condemned  him  to  tiie  cross,  those 
that  loved  him  at  the  first  did  not  forsake  him,  for  he  appeared  to  them  alive 
again  the  third  day,  as  the  Divine  prophets  had  foretold  these  and  ten  thousand 
other  wonderful  things  concerning  him;  and  the  tribe  of  Christians  so  named 
from  him  are  not  extinct  at  this  day."  Josephus's  "Antiquities  of  the  Jews," 
p.  HG4. 


446  ECCLESIASTICAL  LAW. 


from  Parthia,  Media,  Mesopotamia,  Cappadocia,  Phiygia,  Pam- 
phylia,  Egypt,  Libya,  Rome,  and  Arabia,  knowing  the  facts'? — 
for  it  is  fair  to  presume  that  all  of  these  nations  and  others  were 
represented  there  at  the  time. 

Not  only  the  publicity  of  the  events  recorded  and  the  number 
of  witnesses  that  are  represented  as  being  acquainted  with  the 
facts  add  strength  and  impart  verity  to  the  statements,  but  they 
are  corroborated  by  others.^ 

Paul,  who  was  by  birth  a  Roman  citizen,  a  man  of  won- 
derful powers  of  intellect,  and  originally  a  man  of  ambitious 
views,  born  at  Tarsus,  educated  in  Jerusalem  in  the  school  of 
Gamaliel,  a  distinguished  Jewish  rabbi,  after  having  couimenced 
a  course  of  persecution  suddenly  embraces  the  new  doctrine  and 
devotes  the  balance  of  his  life  to  teaching  and  writing  in  its  vin- 
dication, surrondei"ing  all  hope  of  political  or  other  aggrandize- 
inent;  traveling  from  place  to  place,  establishing  Churches,  con- 
firming and  encouraging  those  that  had  been  established  by 
others ;  declaring  in  the  presence  of  Agrippa,  Festus,  and  others, 
that  he  had  been  mii-aculously  stopped  on  his  way  from  Jerusalem 
to  Damascus;  that  he  had  seen  a  vision  accompanied  by  a  light 
above  the  brightness  of  the  sun,  and  that  he  had  heard  a  voice, 
and  that  some  of  those  things  were  heard  and  seen  by  those  that 
accompanied  him  ;  that  he  was  stricken  with  blindness,  and  in 
that  condition  led  b}^  those  that  accompanied  him  to  Damascus ; 
that  his  blindness  was  miraculously  cured,  giving  the  circum- 
stances with  minute  detail.  He  had  made  this  statement  twice, 
at  least,  before,  and  he  now  makes  it  to  King  Agrippa,  with  that 
degree  of  apparent  earnestness  that  carried  conviction  to  the 
mind  of  this  distinguished  Roman,  that  Paul  at  least  was  free 
from  the  charge  or  suspicion  of  an  attempted  imposition.  Others 
have  borne  testimony  to  the  statements  of  the  evangelists,  and 

^  •'  Nero,  in  order  to  stifle  the  rumor  (as  if  he  himself  had  set  Rome  on  fire), 
ascribed  it  to  those  people  who  were  hated  for  their  wicked  practices  and  called 
by  the  vulgar,  'Christians;'  these  he  punished  exquisitely.  The  author  of  this 
name  was  Christ,  who,  in  the  reign  of  Tiberius,  was  brought  to  i)unishment  by 
Pontius  Pilate,  the  procurator."  Tacit.  Annal.,  Lib.  15,  c:ip.  44.  Written  about 
A.  D.  11 0. 

About  A.  D.  147,  Just.  Mart.  Dialog. cum  Trypho,  p.  230,  "You  (Jews)  knew 
tliiit  Jesus  was  risen  from  the  dead  and  ascended  into  heaven,  as  the  prophecies 
did  foretell  was  to  happen." 


i 


AUTHENTICITY  OF  THE  SCRIPTURES.  447 

if  their  statements  were  made  as  represented  within  the  life  of 
living  witnesses,  who  were  not  only  able  but  willing  to  conti'adict 
them  if  they  were  false,  the  entire  New  Testament,  if  not  true, 
would  have  been  overthrown  and  discredited  as  unworthy  of 
belief. 

There  are  several  methods  known  to  the  law  of  discrediting 
testimony,  the  most  effective  of  which  is  by  showing  that  the  tes- 
timony is  conflicting  and  irreconcilable  with  itself  5  that  is,  that 
the  different  accounts  given  by  the  witness  can  not  be  harmo- 
nized. There  is  always  a  consistency  about  truth  that  is  never 
found  when  a  witness  is  deposing  to  fiilsehood.  Truth  is  like  a 
chain  with  many  links,  when  drawn  out  it  will  be  found  to  be  a 
united  and  consistent  whole.  With  falsehood  it  is  otherwise ; 
here  and  there  a  connecting  link  will  be  missing,  neither  will 
the  witness,  when  fabricating  his  testimon}',  tell  the  same  story 
the  second  time,  but  an  observable  effort  will  be  apparent  to 
harmonize  the  different  statements.  Now  let  us  test  the  state- 
ments of  Paul  made  on  three  several  occasions,  with  considerable 
time  intervening,  and  each  time  under  different  circumstances, 
and  what  is  the  result?  Slight  discrepancies  are  apparent,  yet 
no  infidel  critic  has  ever  attempted  in  this  narrative  to  involve 
the  apostle  in  even  a  supposed  contradiction  as  to  any  of  the  ma- 
terial facts.  If  not  contradicted  according  to  the  rule  of  law 
before  referred  to,  his  testimony  is  entitled  to  credit.  Let  us 
analyze  it  and  see  if  it  was  not  open  to  criticism  if  his  statements 
were  untrue.  Was  it  true  that  he  was  commissioned  by  the  chief 
priests  to  go  to  Damascus,  arrest  and  bring  bound  unto  Jerusalem 
the  believers  in  Christ  ?  Was  it  true  that  he  started  on  his  way 
and  took  with  him  a  posse,  the  better  to  execute  his  purpose? 
Was  it  true  that  on  the  way,  when  he  was  near  to  Damascus,  he 
saw  a  light  that  shone  around  about  him,  and  that  he  heard  a 
voice  saying  unto  him,  "Saul,  Saul,  why  jiei-secutest  thou  me  T' 
Was  it  true  that  he  fell  to  the  earth  and  inquired  "  Who  art  thou, 
Lord  ?"  and  that  the  answer  came,  "  I  am  Jesus  whom  thou  per- 
secutest?"  If  these  facts  did  not  occur,  they  were  of  such  a 
character  that  they  were  of  easy  contradiction.  If  no  authority 
was  conferred  by  the  high-priest  upon  Paul;  if  no  posse  of  men 
accompanied  him  from  Jerusalem  to  Damascus;  if  he  was  not 
stricken  with  blindness  by  the  way;  if  he  was  not  led  by  the 


448  ECCLESIASTICAL  LAW. 

hand  and  brought  into  Damascus,  the  refutation  was  easy  to  be 
made  out.  On  the  contrary,  if  lie  did  accept  a  commission ;  if 
he  did  start  to  go  to  Damascus  with  the  avowed  purpose  of  execut- 
ing sucli  authority,  even  if  he  was  only  a  man  of  ordinary  integ- 
rity— and  the  fact  of  his  being  intrusted  with  tl>e  commission  is 
l)rima  facie  evidence  of  at  least  that — if  he  failed  to  obey  the 
authority  reposed  in  him;  if  his  life  from  that  period  on  under- 
went a  radical  change  ;  if  he  sought  the  communion  and  fellow- 
ship of  those  that  he  previously  persecuted,  these  facts,  with  all 
the  attendant  circumstances,  add  weight  to  his  testimony  ;  and 
if  his  statement  is  accepted  as  true — and  there  is  no  reason  to 
discredit  it  unless  we  deny  all  communication  or  channels  of  com- 
munication between  heaven  and  earth — then  his  testimony  be- 
comes strongly  corroborative  of  the  testimony  of  the  four 
evangelists. 

Another  link  in  this  chain  of  legal  evidence  tending  to  estab- 
lish the  authenticity  of  the  Scriptures  is,  that  at  the  time  Jesus 
Christ  established  his  Church  on  earth,  Israel  and  Judea  were 
subject  to  Rome,  and  Rome  was  the  seat  of  pagan  idolatry.  It 
follows  that  the  establishment  of  a  new  religion,  and  especially 
one  which  restricted  them  in  their  religious  abominations,  would 
neither  receive  Roman  patronage  nor  Roman  protection.  Even 
less  favor  was  shown,  and  less  was  to  be  expected,  from  Judaism, 
insomuch  that  Paul,  when  brought  before  Felix,  deliberately  ap- 
pealed from  the  mock  justice  of  Judea — for  he  had  the  offer  to 
go  to  Jerusalem  and  there  be  tried — to  the  justice  of  Csesar. 
The  religion  of  Jehovah,  established  and  successively  recognized 
by  the  Jews,  had  been  by  their  priests  and  public  officials  so 
prostituted  as  to  render  it  a  matter  of  commerce,  and  hundreds 
and  thousands,  it  may  be,  in  and  about  Jerusalem,  Avere  living 
off  the  gains  of  the  temple.  Any  new  system  that  put  their 
emoluments  and  livings  in  jeopardy  would  meet  with  the  same 
hostility  that  Paul  met  with  in  the  city  of  Ephesus,  wIkmi  the 
whole  city  cried  out,  "Great  is  Diana  of  the  Ephesians."  Under 
these  circumstances,  confronting  Jewish  hate  and  Roman  scorn, 
amidst  the  scoff  of  the  multitude,  right  in  the  city  of  Jerusalem, 
shortly  after  the  crucifixion,  the  twelve  met,  Matthias  having  been 
selected  instead  of  Judas  Iscariot,  and  there  publicly  preached  in 
his  name,  and  declared  the  fact  of  the  death,  resurrection,  and 


AUTHENTICITY  OF  THE  SCRIPTURES.  449 

ascension  of  Jesus  Christ,  and  tliat  he  was  the  promised  Messiah 
of  the  Jews,  and  that  they  were  the  chosen  witnesses  of  his 
miracles.  In  one  day,  in  the  presence  of  strangers  and  sojourn- 
ers from  ahnost  every  nation  of  the  globe,  or  all  making  any  pre- 
tension to  civilization,  they  organized  and  established  a  Church, 
and  from  that  time  forward  there  has  never  been  a  day  in  which 
there  have  not  been  organized  Christian  bodies. 

In  view  of  tlie  opposition  and  power  opposed  to  (he  spread  of 
Christianity  ;  in  view  of  tlie  persecution  immediately  succeeding; 
in  view  of  the  trials  and  hardships  and  privations  that  these  men 
were  subjected  to;  in  view  of  the  fact  that  prisons,  dungeons, 
stocks,  stripes,  hunger,  nakedness,  and  death  awaited  them,^ 
what  motive  could  they  have  had  to  misrepresent  the  facts? 
Misrepresentation  deprived  them  of  an  earthly  inheritance,  and 
gave  to  them  no  expectation  of  a  better  inheritance  in  a  future 
state.  Their  doctrines  and  professions  are  directly  opposed  to  a 
belief  in  their  want  of  veracity.  Falsehood,  in  connnon  with 
all  other  crimes,  was  by  them  denounced  and  held  in  just 
abhorrence. 

The  Scriptures  abound  with  particular  reference  to  numerous 
historical  characters  about  whose  existence,  power,  and  authority, 
as  public  officials  and  as  heads  of  governments,  there  never  has 
been,  and  is  not  now,  any  question.  It  is  a  conceded  fact,  sup- 
ported by  such  an  author  as  Josephus,  that  there  was,  about  the 
time  of  the  birth  of  Christ,  a  certain  man  who  assumed  regal 
power  over  Judea,  called  Herod  the  King,  and  that  he  reigned 
over  Judea  for  a  period  of  about  thirty-seven  years ;  that  he 
was  a  man  of  unlimited  ambition  and  cruelty  so  that  the  account 
given  in  Matthew  that  he  commanded  all  the  male  children  iri 
Bethlehem  to  be  put  to  death  is  rendered  probable,  especially 
when  we  take  into  consideration  that  it  was  the  firm  belief  of  the 

^  James  was  a  wonderful  person,  and  so  celebrated  by  all  others  for  righteous- 
ness that  the  judicious  Jew  thought  that  the  putting  of  iiim  to  death  was  the  oc- 
casion of  the  siege  of  Jerusalem,  which  came  on  presently  after  his  martyrdom, 
and  that  it  befell  them  for  no  otlier  reason  than  the  impious  act  they  were 
guilty  of  against  him.  Josephus,  therefore,  did  not  refuse  to  attest  thereto  in 
writing,  by  words  following  :  "These  miseries  befell  the  Jews  by  way  of  revenge, 
for  James  the  Just  was  the  brother  of  Jesus  that  was  called  Christ,  on  this  ac- 
count, that  they  had  slain  him  who  was  a  most  righteous  person."  Hist.  EccL 
Lib.  1,  Oap.  11. 


450  ECCLESIASTICAL  LAW. 


Jewish  people  over  which  he  reigned,  founded  upon  the  prophe- 
cies of  the  Old  Testament  Scriptures,  that  there  should  be  born 
about  that  time  in  Bethlehem  one  who  was  to  be(;ome  the  king 
of  the  Jews,  and  that  through  his  power  the  Jews  would  be  en- 
abled to  throw  off  the  Roman  yoke.  It  is  related  by  the  evan- 
gelist, Matthew,  that  before  this  cruel  sentence  could  be  executed 
Joseph,  the  husband  of  Mary,  was  warned  in  a  dream  of  the  ap- 
proaching peril,  and  fled  with  the  infant  Jesus  and  his  mother  into 
Egypt,  and  remained  there  until  after  the  death  of  Herod.  The 
fact  that  no  mention  of  this  cruel  edict  is  made  in  profane  history 
is  easily  accounted  for  upon  the  hypothesis  that  the  profane  his- 
torians that  were  contemporary  with  him,  either  from  fear  or 
favor  omitted  its  mention,  and  because  it  had  no  political  signi- 
ficance, and  the  act  in  its  character  was  so  unworthy  of  a 
great  name. 

After  the  death  of  Herod,  Archelaus,  whom  he  appointed  by 
his  will  his  successor  over  Judea,  succeeded  in  the  room  of  his 
father  as  king  over  Judea.  The  other  parts  of  Herod's  domin- 
ions he  divided  between  his  sons  Herod  Antipas  as  tetrarch  of 
Galilee,  and  Philip  as  tetrarch  of  Trachonitis,  and  they  exercised 
authority  as  tetrarchs  in  the  fifteenth  year  of  Tiberius  Csesar. 
Their  authority  was  never  fully  recognized,  and  Archelaus  was 
appointed  by  the  Roman  government  ruler  over  Judea  and  Idu- 
msea,  with  the  title  of  ethnarch,  the  dignity  of  king  being  at  the 
time  withheld.  Soon  after,  however,  the  title  of  king  Avas  as- 
sumed by  Archelaus;  this  accords  with  the  account  given  by  Jo- 
sephus,  and  fully  corroborates  the  statements  contained  in  the 
Gospel  of  Matthew.  True  to  his  ancestral  blood,  Archelaus  proved 
to  be  a  cruel  and  tyrannical  prince,  whom  the  favor  of  Claudius 
and  Caligula  had  raised  to  regal  authority.  When  in  power  it 
is  said  that  in  order  to  conciliate  the  Jews  he  stretched  forth  his 
hands  to  vex  certain  of  the  Churches  and  put  to  death  James,  the 
brother  of  John.  Afterwards  he  arrayed  himself  in  royal  ap- 
parel or  in  garments  made  of  silver,  so  that  the  reflection  of  the 
rays  of  the  sun  ^  falling  upon  the  silver  gave  him  a  majestic 
appearance;  thereupon  the  people  gave  a  great  shout,  and  at 
the  conclusion  of  an  oration  delivered  by  him,  they  declared 
that  his  was  the  voice  of  God.  Immediately,  St.  Luke  de- 
clares, "the  angel  of  the  Lord  smote  him,  because  he  gave  not 


AUTHENTICITY  OF  THE  SCRIPTURES.  451 

God  the  glory,  and  lie  was  eaten  of  worms  and  gave  up  the 
ghost." 

If  this  statement  made  by  St.  Luke  was  not  true  as  it  related 
to  a  public  matter  and  to  a  public  official  where  thousands  are 
represented  as  being  present,  it  never  would  have  obtained  cre- 
dence. Yet  no  historian  has  attempted  to  contradict  the  fact, 
but  in  all  essential  particulars  the  account  given  by  St.  Luke  has 
received  the  historical  indorsement  of  Josephus.  The  history  of 
this  family  is  so  intimately  interwoven  with  the  history  of  the 
early  Christian  Churches,  and  the  circumstances  recorded  in 
profane  history  are  corroborative  of  the  authenticity  of  the  New 
Testament  Scriptures,  that  we  propose  briefly  to  trace  them  a 
little  further.  It  is  related  that  Herod  had  three  daughters,  Ber- 
nice,  Mariamne,  Drusilla,  and  that  the  last  mentioned  of  them 
was  married  to  Felix,  who  was  appointed  governor  of  Judea  on 
the  death  of  Herod ;  that  Felix  was  tyrannical,  avaricious,  and 
oppressive.  Tliis  exactly  accords  with  the  account  given  of  him 
b}^  St.  Luke.  Such  a  character  would  naturally  have  called  forth 
tlie  appeal  of  Paul  in  the  memorable  defense  made  by  him  be- 
foie  Felix,  in  which  he  reasoned,  with  such  vigor  of  intellect, 
of  righteousness,  temperance,  and  judgment  to  come,  that  Felix 
trembled;  yet,  notwithstanding  his  compunction,  of  conscience, 
his  venality  kept  pace  with  his  sense  of  right,  and  he  was  ready 
to  barter  away  justice  for  money. 

Another  character  that  stands  forth  more  conspicuous  than  all 
others  in  the  New  Testament  Scriptures,  on  account  of  the  part 
that  he  took  in  the  crucifixion  of  Jesus  Christ,  is  Pontius  Pilate, 
who  was  appointed  about  A.  D.  25,  or  in  the  twelfth  year  of  the 
i-eign  of  Tiberius,  procurator  of  Judea.  It  is  said  that  one  of 
his  first  acts  was  to  remove  the  headquarters  of  his  army  from 
Cesarea  to  Jerusalem,  together  with  their  idolatrous  standards; 
which  met  with  a  strong  and  persistent  opposition  from  the  Jews 
and  almost  drove  them  into  insurrection.  They  remonstrated 
with  him,  and  tiieir  remonstrances  Avere  met  with  barbarous 
cruelty  and  death.' 

^  "Pilate,  the  procurator  of  Judea,  removed  the  army  from  Cesarea  to  Jeru- 
salem to  take  their  Winter  quarters  there,  in  order  to  abolish  the  Jewish  laws;  so 
he  introduced  Ceesar's  effigies,  which  were  upon  the  ensigns,  and  brought  them 
into  the  city,  whereas  our  law  forbids  us  the  very  making  of  images;  on  which 


452  ECCLESIASTICAL  LAW. 

This  treatment  instead  of  subduing  only  strengthened  the 
Jews  in  their  determination,  for  they  chose  death  rather  than 
submission  to  an  idolatrous  innovation  upon  their  religion.  Pilate 
finally  found  himself  compelled  to  yield,  and  to  remove  his  idol- 
atrous standard  from  Jerusalem  back  to  Cesarea.  In  this  con- 
flict, and  in  others  in  which  he  engaged  with  the  Jews,  he  treated 
them  with  great  barbarity ;  he  even  put  to  death  certain  Galile- 
ans and  mingled  their  blood  with  their  sacrifices,  but  he  learned 
a  lesson,  and  we  see  the  result  of  it  in  the  clamor  of  the  Jews 
for  the  criidifixion  of  Christ.  Pilate,  notwithstanding  his  con- 
scious convictions  of  the  innocence  of  Christ,  which  he  more 
than  once  declared,  publicly  delivered  him  to  be  crucified — an  act 
unworthy  of  any  procurator,  governor,  or  judge,  but  neverthe- 
less an  act  that  was  in  perfect  keeping  with  the  character  of  the 
man.  There  are  some  corroborating  circumstances  connected 
with  the  history  of  Pilate  that  add  great  weight  to  the  account 
given  by  the  evangelists  of  the  crucifixion  of  Christ.  At  that 
time  Pilate  resided  at  Cesarea,  and  had  the  headquarters  of  his 
army  there,  but  it  was  his  custom  upon  the  occasion  of  the  great 
feasts  of  the  Jews,  which  brought  together  the  principal  men  of 
the  Jewish  provinces  to  celebrate  their  feasts,  in  order  to  enforce 
quiet  and  to  prevent  insurrections,  temporarily  to  remove  his 
lieadquarters    to    Jerusalem.      This    accounts    for    Christ    being 

account  the  former  procurators  were  wont  to  make  their  entry  into  the  city  with 
such  ensigns  as  had  not  those  ornaments.  Pilate  was  the  first  who  brought 
those  images  to  Jerusalem  and  set  them  up  there,  which  was  done  without  the 
knowledge  of  the  people  because  it  was  done  in  the  night  time;  but  as  soon  as 
they  saw  them,  they  came  in  multitudes  to  Cesarea  and  interceded  with  Pilate 
many  days  that  he  should  remove  the  images;  and  when  he  would  not  grant 
their  requests  because  it  would  tend  to  the  injury  of  Caesar,  while  yet  they  per- 
severed in  their  requests,  on  the  sixth  day  he  ordered  his  soldiers  to  have  their 
weapons  privately  while  he  came  and  sat  upon  his  judgment  seat,  which  place 
was  so  prepared  in  the  open  place  of  the  city,  that  it  concealed  the  army  that 
lay  ready  to  oppress  them;  and  when  the  Jews  petitioned  him  again,  he  gave  a 
sio'nal  to  the  soldiers  to  encompass  them  round,  and  threatened  that  their  pun- 
ishment should  be  no  less  than  immediate  death  unless  they  should  leave  off  dis- 
turbing him  and  go  their  way  home,  but  they  threw  themselves  upon  the  ground 
and  laid  their  necks  l)are,  and  said  that  they  would  take  their  death  very  willingly 
rather  than  the  wisdom  of  their  laws  sliould  be  transgressed;  upon  which  Pilate 
was  deeply  affected  with  their  firm  resolution  to  keep  their  laws  inviolable,  and 
presently  commanded  the  images  to  be  carried  back  from  Jerusalem  to  Cesarea." 
Josephus's  "Antiquities,"  p.  'MS. 


AUTHENTICITY  OF  THE  SCRIPTURES.  453 

brought  before  PlLitc  in  tlic  palace  of  Herod;  it  also  accounts 
for  the  Jews,  contrary  to  all  their  previous  history,  insisting 
upon  the  crucifixion  taking  place  at  the  feast  of  the  Passover, 
for  it  was  only  during  those  feasts  that  Pilate  had  his  head- 
(piarters  at  Jerusalem,  and  they  feared  that  if  he  should  return 
to  Cesarea  without  condemning  or  assenting  to  the  condenma- 
tion  of  the  Son  of  God,  they  would  not  be  able  to  sustain  their 
accusation  against  him,  and  to  secure  by  the  clamor  of  the  mob 
his  conviction. 

Another  strong  corroborating  circumstance  as  proof  that  the 
Scriptures  Avere  written  in  the  first  century  is,  that  they  refer 
not  only  to  historical  men  and  women  of  that  period,  but  they 
make  special  reference  to  certain  religious  sects  into  which 
the  Jews  Avere  divided,  and  give  not  only  the  name  of  each 
sect,  but  also  the  peculiar  tenets  and  belief,  and  the  doctrines 
taught  and  entertained  by  each  of  such  sects,  which  no  im- 
postor writing  at  a  later  period  would  venture  to  have  done, 
even  if  the  task  had  been  possible;  for  it  is  evident  from  pro- 
fane  history  and  from  Josephus,  who  wrote  in  that  century, 
that,  during  the  latter  part  of  the  century  tiiere  were  great 
political,  social,  military,  and  religious  revolutions,  during  which 
the  temple  was  destroyed,  and  the  nationality  of  the  Jewish 
people  obliterated,  so  that  they  have  had  from  that  time  forward 
no  political  or  historical  national  recognition.  No  event  could  so 
effectually  have  Aviped  out  all  traces  of  religious  difference  be- 
tween the  different  sects  or  tended  to  unite  and  consolidate  the 
entire  people  into  one  religious  sect,  as  the  destruction  of  their 
temple  and  the  overthrow  of  their  nationality;  for  from  that  time 
forAvard  the  Jews  have  been  scattered  over  all  the  nations  in 
Christendom,  and  have  been  subjected  to  persecutions  and  re- 
proaches, yet  notwithstanding  they  have  retained  their  peculiar 
distinctive  character  as  Jews.  All  traces  of  their  divisions  into 
sects  have  disappeared.^ 

*  "In  all  matters  relating  to  the  temple  at  Jerusalem  and  to  the  religion  of  the 
Jews  there  is  a  remarkable  agreement  between  the  authors  of  the  New  Testa- 
ment and  Josephus,  who  had  in  person  beheld  the  sacred  edifice,  and  was  him- 
self an  eye-witness  of  the  solemn  rites  performed  there.  Hence  it  is  obvious 
that  his  statements  are  unquestionably  more  worthy  of  credit  than  the  unsup- 
ported assertion  of  the  Talmudists,  who  did  not  flourish  until  long  after  the  sub- 

30 


454  ECCLESIASTICAL  LAW. 


Another  strong  corroborating  circumstance  in  proof  of  the 
fact  that  the  Gospels  and  Epistles  were  written  in  that  period  is, 
that  they  were  early  translated  from  the  Greek  into  different  lan- 
guages, as  the  Arabic,  Armenian,  Ethiopic,  Gothic,  and  Latin, 
and  these  were  in  use  before  the  time  of  Jerome;  and  to  this  day 
the  Greek  or  Septuagint  version  is  used  in  the  Oriental  Churches. 
All  of  these  different  translations  claim  the  same  origin,  assert 
the  same  authorship,  and  agree  as  to  the  date  of  their  commence- 
ment, and  substantially  agree  as  to  all  the  material  facts.  With 
this  weiglit  of  historical  recognition,  it  may  be  safely  assumed 
that  the  Gospels  were  written  and  promulgated,  generally  known, 
and  received  as  authentic,  in  the  first  century  ;  and  if  so,  it  fol- 
lows as  a  necessary  legal  conclusion,  that  the  facts  contained  in 
them  are  true.  There  is  direct  internal  evidence  that  these  sev- 
eral books  of  the  New  Testament,  were  not  written  by  the  same 
authors.  They  profess  to  have  been  written  by  Matthew,  Mark, 
Luke,  John,  Paul,  James,  Peter,  and  Jude.  Their  style  and 
manner  of  expression  is  different,  and  so  diversified  that  it  would 
be  impossible,  subjected  as  these  writings  have  been  to  keen 
analytical  criticism  by  both  pagan  and  infidel,  to  have  escaped 
detection  if  there  had  been  a  conspiracy  so  wide  and  spreading 
in  its  tendency  to  palm  off  those  Scriptures  as  genuine  when 
they  were  merely  mythical  and  tlie  work  of  impostors.  Besides, 
they  profess  to  have  been  written  and  addressed  to  certain 
Churches  and  to  certain  persons  for  the  purpose  of  being  pub- 
licly read.  Here  we  meet  the  same  publicity  of  design  that  ac- 
companied the  teachings  and  miracles  of  Jesus  Christ.     One  of 


version  of  the  city  and  temple  and  of  the  whole  Jewish  polity,  both  sacred  and 
civil.  A  single  instance  out  of  many  that  might  be  adduced  will  suffice  to 
illustrate  the  importance  of  this  remark.  Tiie  Talmudical  writers  afiirm  that  the 
priests  only  killed  the  paschal  lambs,  but  Josephus  (whose  testimony  is  confirmed 
by  Philo),  relates  that  it  was  lawful  for  tlie  master  of  every  family  to  do  it,  with- 
out the  intervention  of  any  priest,  and  they  further  relate  that  at  the  time  of  the 
Passover  there  were  so  many  families  at  Jerusalem  that  it  was  utterly  impossi- 
ble for  the  priests  to  kill  the  paschal  lamb  for  every  family.  In  the  New  Testa- 
ment we  read  that  Jesus  Clirist  sent  his  disciples  to  a  private  house  that  the 
Passover  might  be  prepared  Ijy  its  posses.sor  and  by  them  without  the  presence 
of  any  priest,  or  previously  taking  the  lamb  to  the  temple.  As  the  statements 
of  Philo  and  Josephus  are  corroborated  by  tiie  relation  in  the  New  Testament, 
they  are  undoubtedly  correct."     Lardner's  "Works,"  Vol.  7,  pp.  1G2-I87. 


AUTHENTICITY  OF  THE  SCRIPTURES.  455 

those  Epistles  purports  to  have  been  addressed  to  the  Christians 
at  Rome,  at  that  time  Rome  being  the  center  of  the  lieatlien 
civilization  of  the  world,  with  the  best  system  of  morals,  the  best 
rules  of  evidence,  the  most  complete  and  thorough  code  of  laws, 
with  the  profoundcst  philosophers,  with  the  ablest  and  wisest  men 
of  the  age  belonging  to  tlie  heathen  world.  The  fact  that  this 
Epistle  was  written  by  Paul  to  Rome  has  never  been  successfully 
controverted ;  neither  does  the  infidel  world  seriously  question 
the  fact  that  a  body  of  Christians  were  at  Rome  at  tlie  time  when 
this  Epistle  purports  to  have  been  written.  The  suljject  of  tiie 
Epistle,  in  view  of  the  condition  of  those  to  whom  it  was  ad- 
dressed, is  peculiarly  applicable,  and  affords  strong  and  marked 
evidence  of  its  authenticity.  Were  it  otherwise,  why  should  it 
contain  so  full  and  exhaustive  a  discussion  of  the  doctrine  of  cir- 
cumcision under  the  law,  or  circumcision  of  the  heart  and  of  the 
inner  life  through  faith  ?  Circumcision  was  not  a  Roman  but  a 
Jewish  ordinance,  which,  in  the  preceding  ages,  had  been  the 
peculiar  mark  to  designate  the  true  worshipers  of  Jehovah  from 
the  heathen  nations  around  ;  neither  Avas  this  ordinance  regarded 
with  favor  by  the  Gentile  world.  Hence,  when  Paul  seeks  to 
extend  the  docti'ines  of  Christianity  and  the  Cross  to  the  heathen 
nations,  he  labors  to  impress  upon  them  the  important  fact  that 
outward  circumcision  availed  nothing,  and  that  they  could  accept 
Christianity  without  at  the  same  time  taking  upon  themselves  this 
ordinance,  and  he  presents  this  question  in  his  Epistle  to  the 
Romans  with  a  clearness  and  ,vigor  of  intellect  such  as  was  pecu- 
liar to  his  style  of  writing.  The  Epistle  is  just  such  a  one  as  we 
might  expect  from  so  gifted  and  sagacious  a  mind  to  such  a  peo- 
ple, surrounded  as  they  were  Avith  all  the  peculiarities  of  Judaism 
on  the  one  hand,  and  heathenism  on  the  other.  This  same  argu- 
ment of  adaptation  holds  good  throughout  every  Epistle  written 
by  Paul,  and,  in  fact,  throughout  the  entire  Scriptures. 

There  are  those  who,  like  the  experienced  astronomer,  have 
so  closel}'  and  critically  studied  and  analyzed  the  styles  of  the 
various  authors,  and  become  so  well  acquainted  Avith  the  peculiar 
mold  of  mind  and  idioms  of  expression,  that  it  Avould  be  impossi- 
ble for  authors  to  so  disguise  themselves  that  these  scientific  ex- 
perts could  not  be  able  to  identify  them.  The  skilled  and 
sxperienced  adept  in  this  department  of  science  is  usually  able 


45G  ECCLESIASTICAL  LAW. 

to  distinguish  between  the  genuine  and  the  spurious,  and  between 
that  which  was  Avritten  at  an  earlier  and  that  Avhich  was  written 
at  a  later  date.  The  manners,  customs,  modes  of  thought,  and 
idioms  of  language,  are  constantly  changing ;  new  words  are  be- 
ing coined  and  old  ones  becoming  obsolete.  Hence  the  task  of 
tracing  out  these  changes  is  less  difficult  than  the  superficial  ob- 
server might  be  led  to  suppose.  In  this  department  there  is 
every  shade  of  difference,  from  marked  sameness  to  the  most 
minute  circumstantial  conjecture.  Tested  by  these  rules,  how  is 
it  with  Paul's  letters  to  the  Romans,  to  the  Corinthians,  to  the 
Galatians,  and  to  the  Ephesians,  to  say  nothing  of  his  other 
writings!  The  experienced  scientific  scholar  in  this  department, 
when  he  has  once  gotten  the  exemplar  of  his  style  in  one  of 
those  Epistles  in  his  mind  has  no  difficulty  in  tracing  his  identity 
through  each  of  the  others. 

In  addition  to  this  evidence  that  those  Epistles  were  Avritten 
and  addressed  to  the  several  Churches,  Ave  have  the  circumstan- 
tial fact  that  such  Churches  were  organized,  and  that  they  ex- 
isted with  distinct  traditional  claim  to  having  been  established  by 
the  persons  in  accordance  with  the  accounts  given  in  the  New 
Testament.  How  long  and  to  what  extent  tradition  may  be  relied 
upon  in  the  absence  of  contradictory  facts  in  order  to  establish 
the  authenticity  of  a  claim  of  right,  is  nowhere  settled  and  deter- 
mined by  legal  adjudication.^  The  laAv,  however,  receives  tradi- 
tionary evidence  as  authentic  Avhen  it  has  existed,  as  it  is  quaintly 
expressed  by  Blackstone,  "time  out  of  mind;"  that  is,  for  a 
length  of  time  so  that  the  memory  of  man  runneth  not  to  the 
contrary.  It  is  a  well  established  fact,  that  a  large  portion  of 
what  we  receive  as  historical  truths  to-day  is  made  up  of  public 

^  Historical  facts  of  general  and  public  notoriety  may  be  proved  by  reputa- 
tion, and  reputation  may  be  established  Ijy  historical  works  of  known  character 
and  accuracy.  Morris  v.  The  Lessee  of  Harmer's  Ife)rs,1  Veiers,  H3-1.  (So  in 
this  State),  viz.,  Boijardus  v.  The  TrinUy  Church,  4  Sand.  Chr.  G33,  724.  The 
Vice-Chancellor,  speaking  of  evidence  derived  from  public  records,  statutes, 
legislative  journals,  historical  works,  etc.,  says  that  it  is  "restricted  as  to  histor- 
ical evidence  to  facts  of  a  public  and  general  nature."  There  is,  indeed,  no 
doubt  lliat  it  is  strictly  confined  to  facts  of  this  sort.  History  is  only  admissible 
to  prove  history— that  i.s,  such  (\\cts  as,  being  matters  of  interest  to  a  whole 
pooi)lo,  are  usually  incorporated  in  a  general  history  of  the  State  or  nation. 
U'Kinnon  v.  Bliss,  21  N.  Y.  21G. 


AUTHENTICITY  OF  THE  SCRIPTURES.  457 

tradition.  It  is  also  a  familiar  rule  of  evidence,  that  in  proof  of 
such  facts  by  the  declarant,  who  is  not  shown  to  have  been  in- 
terested, the  naked  declaration  of  such  declarant  is  received  as 
evidence  of  reputation  or  traditionary  facts.  There  is  another 
reason  why  tradition  is  strongly  corroborative  of  the  facts  re- 
corded in  the  several  Epistles  of  the  Kew  Testament,  and  that  is, 
that  a  deadly  enmity  existed  in  the  mind  of  the  Jews  and  in  the 
mind  of  the  pagan  world  against  Christianity,  and  neither  would 
have  permitted  an  unfounded  tradition  to  be  transmitted  from  one 
generation  to  another,  without  an  impeachment  of  its  anthcn- 
tieity.  Besides,  there  is  no  conceivable  motive  known  either  to 
the  Christian  or  infidel  world  that  would  have  prompted  these 
Churches  to  establish  and  adhere  to  a  tradition  that  was  false. 

There  is  a  rule  of  law  firmh'  recognized  by  our  civil  tribu- 
nals, that  the  continued  and  repeated  assertion  of  a  claim  of 
right  acquiesced  in  by  others  for  a  period  beyond  the  memory  of 
living  witnesses  is  evidence  that  such  a  claim  had  a  legal  com- 
mencement— that  it  existed  by  riglit  and  not  by  wrong.  Thus, 
where  a  corporation — whether  a  corporation  sole  or  aggregate — 
exercised  a  certain  franchise  and  had  exercised  such  franchise 
time  out  of  mind,  it  was  held  that  the  commencement  of  such 
exercise  was  legal,  or  at  least  presumed  to  be  so,  ^  and  existed  by 
royal  grant,  and  that  although  there  is  now  no  evidence  of  the 
existence  of  such  royal  grant  except  that  contained  in  the  re- 
peated assertion  by  the  corporation  or  by  its  members  of  the 
traditionary  claim  and  acquiescence  of  the  public  in  such  claim 
under  such  circumstances  is  sufficient  conclusively  to  establisli 
the  grant,  and  this  upon  the  legal  presumption  that  others  ad- 
versely interested  would  have  disputed  such  right  and  would  not 
have  acquiesced  in  it  unless  the  same  had  been  legally  authorized 


^  The  general  rule  with  regard  to  prescriptive  claims  is,  tliat  every  such  claim 
is  good  if,  by  possibility,  it  might  have  had  a  legal  commencement  1  Term 
Rep.  p.  667. 

Immemorial  usage,  from  time  ■whereof  the  memory  of  man  lunneth  not  to 
the  contrary,  was  formerly  held  to  be  when  such  usage  had  commenced  not 
later  than  the  beginning  of  the  reign  of  Richard  I.  But  as  in  most  cases  it  is 
impossible  to  bring  proof  of  the  existence  of  any  usage  at  this  early  date,  the 
courts  were  wont  to  presume  the  fact  upon  proof  only  of  its  existence  for  some 
reasonable  time  back.     Bright  v.  Walker,  4  Tyr.  p.  509. 


458  ECCLESIASTICAL  LAW. 


in  its  commencement.  At  the  time  when  the  Gospels  and  Epis- 
tles purport  to  have  been  written,  the  number  that  could  read  and 
Avrite  was  comparatively  few.  The  science  was  not  then,  as  now, 
in  use  among  the  great  masses  of  the  people,  and  when  these 
Epistles  were  written  they  were  wa-itten  -with  directions  to  be 
i-ead  in  the  Churches  to  which  they  were  addressed.  Some  of 
them  were  written  to  correct  certain  abuses  that  had  gotten 
into  the  Churches,  and  to  admonish  them  of  certain  things  tol- 
erated in  the  Churches  which  were  disgraceful  even  in  the 
heathen  world.  Especially  is  this  true  of  the  Epistle  addressed 
by  Paul  to  the  Church  at  Corinth,  in  which  he  complained  that 
the  Church  tolerated  a  man  to  have  his  father's  wife,  and  then, 
assuming  apostolic  authority,  he  commands  the  Church  to  discard 
him,  and  not  even  to  keep  company  Avith  such  a  one  ;  but  after- 
Avards,  hearing  of  the  affliction  and  deep  anguish  that  this  had 
caused  the  Church,  and  even  the  offender,  he  addressed  to  them 
a  recommendation  for  the  forgiveness  of  the  offender.  All  this 
is  utterly  inconsistent  with  the  belief  that  this  Epistle  is  not 
genuine,  and  that  these  characters  are  merely  mythical  ones. 
This  is  only  one  of  the  many  ear-marks  of  authenticity  by  refer- 
ence to  a  minutise  of  detail  that  may  be  found  in  these  Epistles, 
and  which  are  never  found  in  spurious  productions. 

We  come  now  to  the  consideration  of  another  evidence  of  the 
genuineness  of  the  Scriptures.  In  moral  evidence,  especially, 
we  judge  of  the  existence  of  a  fact  by  its  concomitants.  Now, 
let  us  apply  the  rule  as  an  aid  in  this  investigation.  By  refer- 
ence to  the  known  laAvs  of  nature,  we  find  that  there  are  no  sys- 
tems, methods,  or  sciences  unfolded,  and  that  there  is  no  classifi- 
cation ;  for  illustration,  we  see  here  a  plant  and  there  a  flower; 
some  adapted  to  growing  upon  the  mountains,  some  in  the  valleys, 
some  in  the  forests,  and  some  in  the  water  ;  but  there  is  no  un- 
folding of  what  is  the  essential  nature  and  property  of  these 
flowers  and  plants.  Each,  however,  is  peculiarly  adapted  to  the 
situation  in  which  it  is  })laced,  and  they  altogether  afford  tiie  ma- 
terial and  substance  out  of  which  a  system  or  science  may  be 
formed.  The  work  of  showing  the  relation  Avhich  one  of  these 
sustains  to  the  other,  and  the  property  of  each,  belongs  to  man. 
The  same  principle,  not  only  of  adaptation  but  of  material  sub- 
stance, is  observable  in  the  Bible. 


AUTHENTICITY  OF  THE  SCRIPTURES.  459 

.If  we  have  sncceeded,  in  this  brief  article,  in  establishing  the 
legal  authenticity  of  the  New  Testament  Scriptures,  and  in  de- 
volving the  burthen  of  proof  upon  those  who  call  them  in  ques- 
tion, Ave  can  easily  from  them  infer  the  authenticity  of  the  Old 
Testament  Scriptures,  first,  from  the  fact  that  the  one  is  in  har- 
mony with  the  other,  and  is  simply  an  unfolding  and  fulfillment 
by  the  one  of  what  is  contained  in  the  other.  Without  attempt- 
ing the  task  of  tracing  out  the  prophetic  references  commencing 
in  the  Book  of  Genesis  and  ending  with  the  last  of  what  is  called 
the  lesser  propliets,  there  is  no  difficulty  in  reaching  the  conclu- 
sion that  the  entire  Old  Testament  Scriptures  were  designed  to 
be,  apart  from  their  historical  accounts,  mere  types,  reflecting 
the  coming  and  ushering  in  of  a  new  and  better  dispensation, 
founded  upon  clearer  principles  and  more  substantial  promises. 
In  addition  to  this,  almost  every  Book  of  the  Old  Testament  that 
is  now  regarded  as  canonical,  is  referred  to  with  that  degree  of 
certainty  Avhich  leaves  no  room  for  doubt  that  if  the  one  is  gen- 
uine the  other  must  be  also.^ 

The  internal  evidence  that  the  Bible  itself  affords  of  genuine- 
ness aside   from  all    extraneous   considerations    is    sufficient    to 


^  Recitals  do  not  bind  strangers  or  those  who  claim  by  title  parainoiint.  It 
does  not  bind  persons  claiming  by  an  adverse  title,  or  persons  claiming  from  the 
parties  by  a  title  anterior  to  the  date  of  the  recited  deed.  Such  is  the  general 
rule.  But  there  are  cases  in  which  such  a  recital  may  be  used  as  evidence  even 
against  strangers.  If,  for  instance,  there  be  the  recital  of  a  lease  in  a  deed  of 
release,  and  in  a  suit  against  a  stranger  the  title  under  the  release  comes  in 
question,  then  the  recital  of  the  lease  in  such  release  is  not,  per  se,  evidence  of 
the  existence  of  the  lease;  but  if  the  existence  and  loss  of  the  lease  be  estab- 
lished by  other  evidence,  then  the  recital  is  admissible  as  secondary  proof,  in  the 
absence  of  more  perfect  evidence,  to  establish  the  contents  of  the  lease;  and  if 
the  transaction  be  an  ancient  one  and  the  possession  has  been  long  held  under 
such  release,  and  is  not  otherwise  to  be  accounted  for,  there  the  recital  will,  of 
itself,  under  such  circumstances,  materially  fortify  the  presumption  from  lapse 
of  time  and  length  of  possession  of  the  original  existence  of  the  lease.  Leases, 
like  other  deeds  and  grants,  may  be  presumed  from  long  possession  which  can 
not  otherwise  be  explained;  and  under  such  circumstances  a  recital  of  the  fact 
of  such  a  lease  in  an  old  deed  is  certainly  far  stronger  presumptive  proof  in 
favor  of  such  possession  under  title  than  the  naked  presumption  arising  from  a 
mere  unexplained  possession.  Such  is  the  general  result  of  the  doctrine  to  be 
found  in  the  best  elementary  writers  on  the  subject  of  evidence.  Carter  v.  Jack- 
son, i)  Curtis,  U.  S.  Dec.  f) ;  1  Phillips  on  Ev.  p.  -J  II  ;  1  Starkie  on  Ev.  part  2. 
301 ;   Matthews  on  Presumptions,  195-204  ;   Mayor,  etc.,  v.  Blamire,  8  East,  487. 


460  ECCLESIASTICAL  LAW. 

establisli  its  authenticity,  especially  when  we  take  into  consid- 
eration the  morality  taught  in  the  New  Testament,  as  com- 
pared with  the  morality  of  the  age  in  which  it  was  written. 
The  Jewish  nation  in  that  age,  if  not  the  most  cultured,  and  if 
not  further  advanced  in  the  arts  and  the  sciences  than  the  Greeks 
and  the  Romans,  excelled  them  in  virtue.  Yet  what  kind  of  an 
estimate  should  be  placed  upon  the  morality  of  a  nation  who,  for 
offices  of  kindness,  healing  their  sick,  cleansing  their  lepers,  and 
doing  good  in  every  conceivable  form,  rewarded  such  merit  at  the 
judgment  hall  and  the  crucifixion?  It  is  seldom  that  a  writer  or 
a  philosopher  in  endeavoring  to  introduce  a  new  system  or  set  up 
a  new  standard  ventures  to  set  up  such  standard  in  opposition  to 
or  above  the  public  standard.  The  restraints  of  public  opinion  are 
not  easily  throAvn  off.  This  would  be  especially  true  if  he  who  at- 
tempted the  experiment  Avas  a  mere  adventui'er  uninfluenced  by 
convictions  of  duty.  IIow  does  the  standard  of  morality  of  the 
Jews  compare  Avith  the  standard  erected  by  the  New  Testament 
Scriptures,  wdien  viewed  simply  with  reference  to  its  adaptability 
of  our  wants  and  the  well-being  and  ultimate  good  of  the  race  of 
mankind?  Whoever  taught,  except  the  Son  of  God,  ''love  your 
enemies,"  "do  good  to  them  that  hate  you,  and  pray  for  those 
that  despitefully  use  you?"  Whoever  taught,  besides  Christ 
and  his  apostles,  that  Ave  should  lay  aside  all  hatred,  guile,  and 
hypocrisy,  rendering  evil  for  evil  to  no  man,  but,  on  the  con- 
trary, rendering  good  for  evil?  Where  do  you  find  a  doctrine 
inculcated  outside  the  teachings  of  the  Bible,  that  Ave  should  feed 
the  hungry,  clothe  the  naked,  and  provide  for  the  unfortunate 
and  destitute?  These  are  doctrines  that  are  peculiar  to  the 
teachings  of  the  Ncav  Testament  Scriptures. 

We  do  not  propose  to  discuss  the  question  of  the  morality  of 
the  Bible  from  a  psychological  stand-point,  or  to  claim  for  it  that 
the  theory  of  morals  inculcated  in  it  is  imbedded  in  our  natures; 
but  what  Ave  do  contend  for  is,  that  all  men,  Avithout  reference  to 
their  condition  in  life,  recognize  a  distinction  or  difference  In  ac- 
tions, and  Avhether  Ave  refer  this  difference  to  our  ordinary  intel- 
lectual faculties,  or  to  some  of  our  emotional  susceptibilities,  or 
to  a  mixed  faculty,  or  to  something  peculiar  and  distinct,  is  a  mat- 
ter of  no  moment.  If  there  is  such  a  thing  as  a  standard  of 
morals,  it  must  have  been  set  up  by  some  authority  either  human 


AUTHENTICITY  OF  THE  SCRIPTURES.  461 

or  divine,  and  that  authority  must  have  been  recognized  and  ac- 
quiesced in  by  the  people,  in  order  to  give  it  efficiency  and  effect. 
Two  standards  of  morals  are  recognized  as  existing  in  the  world ; — 
the  one  is  the  standard  set  up  by  human  authority  and  assented 
to  by  Cajsar's  government  or  by  the  governments  of  the  world 
■which,  to  some  extent,  is  restrictive  of  individual  action  or  con- 
duct, but  in  other  respects  it  gives  countenance  to  sin  and  wrong ; 
the  other  is  the  one  that  is  enjoined  in  the  New  Testament 
Scriptures.  Whether  the  one  or  the  other  is  most  promotive 
of  man's  happiness,  the  well-being  and  good  order  of  society,  can 
only  be  determined  by  comparison.  We  read  in  profane  history 
as  well  as  in  the  Bible  that  without  any  regard  to  justice  or  right 
or  without  any  previous  provocation,  one  nation  of  antiquity 
made  war  upon  another.  Thus  the  powerful  Assyrians  having 
discovei'ed  the  vast  wealth  of  the  temple  sent  an  army  to  take 
it  without  any  claim  of  right.  Rome  compelled  the  nations 
surrounding  her,  and  those  that  Avcre  remote,  to  pay  tribute,  and 
to  aid  her  in  her  wars.  Upon  what  principle  was  this  right  as- 
serted? It  was  purely  upon  the  principles  of  might  that  the 
strong  had  the  i-ight  to  oppress  the  Aveak.  Instead  of  cities  and 
provinces  growing  and  reposing  securely  in  the  moral  sense  of 
the  nations,  they  engaged  in  walling  in  their  cities  and  building 
strong  fortresses  and  towers,  and  nearl}'  the  whole  people  and  all 
the  different  nationalities  ■were  given  up  to  invasions,  predatory 
wars,  or  preparations  to  repel  invasions. 

The  doctrine  of  the  New  Testament  has  made  a  change  not 
only  in  our  social,  and  domestic,  but  in  our  national  polity. 
There  has  been  recently  in  Europe  a  convention  of  the  different 
nationalities  with  a  view  of  amicably  adjusting  the  differences 
between  Russia  and  Turkey.  The  whole  civilized  world,  under 
the  influences  of  Christianity  now  seek  to  avert  the  barbarisms 
of  war,  and  the  code  of  international  law  has  grown  up  under  the 
teachings  of  the  New  Testament  Scriptures,  changing  the  law  of 
might  into  the  law  of  right ;  under  a  human  standard  of  morality 
men  were  divided  into  two  classes, — a  barbarous  aristocracy  and 
a  degraded  peasantry,  beasts  of  prey  and  beasts  of  burden. 
Greece  had  her  Olympian  chariot  course  and  Rome  her  Flavian 
amphitheater,  but  Avliat  availed  these  in  the  enlightenment  and 
elevation  of  the  masses,  or  in  bringing  them  up  into  thinking, 


462  ECCLESIASTICAL  LAW. 

intellectual,  and  moral  beings.  Christianity,  unlike  any  otlier 
system  of  religion,  permeates  the  masses,  meets  the  wants  and 
supplies  the  demands  of  our  nature;  in  other  words,  not  only  se- 
cures the  greatest  good,  but  it  supplies  the  necessities  of  all.  It  is 
true  that  since  the  Church  was  established  at  Jerusalem,  at  Rome, 
at  Corinth,  and  at  Ephesus,  it  has  in  many  respects,  in  those  places 
and  in  others,  been  deeply  corrupted  by  the  superstitions  and  by 
the  philosophy  of  the  heathen  nations  surrounding  it.  It  is  true 
that  she  has  accorded  admission  to  doctrines  borrowed  from  ancient 
heathen  schools  and  from  heathen  temples,  Grecian  ingenuity, 
Gothic  ignorance,  Roman  policy.  Syrian  asceticism  has  contrib- 
uted to  deprave  her,  yet,  notwithstanding  the  influence  of  bar- 
barism and  idolatry,  she  has  retained  enough  of  the  purity  of  the 
Gospel  to  make  a  marked  influence  upon  the  destinies  of  the  na- 
tions. Christ  found  the  world  in  a  state  of  grossly  bad  morals, 
destitute  of  enlightened  public  opinion,  oppressed  by  idolatrous 
priestcraft,  and  governed  by  brute  force,  with  no  thought  for  the 
well-being  of  the  people.  One  of  the  strongest  evidences  of  the 
genuineness  of  the  Bible  is  that  which  was  given  by  Christ  to 
John's  disciples,  as  a  mess:igc  to  bear  back  to  their  master,  to  the 
effect  that  the  poor  have  the  Gospel  preached  to  them.  For 
more  than  eighteen  centuries  this  grand  thought,  founded  upon 
the  teachings  of  the  Scriptures,  that  all  men  are  to  be  regarded 
as  politically  and  religiously  equal,  has  been  steadily  gaining 
ground,  and  is  now  the  chief  corner  stone  of  more  than  one  po- 
litical organization.  This  of  itself,  considering  the  circum- 
stances, is  strong  proof  of  the  authenticity  of  the  Scriptures. 
In  leiral  evidence,  from  the  establishment  of  the  existence  of  one 
state  of  facts,  we  can  reasonably  and  legally  infer  another.  If 
the  Bible  is  receivable  in  evidence  supported  by  sufficient  ancil- 
lary proof,  then  it  follows  that  the  statement  contained  in  it  or 
its  recitals  are  evidence,  and  reference  has  been  made  to  the 
principles  of  evidence  external  and  internal  upon  which  it  is 
based.  There  is,  however,  no  evidence  of  many  of  the  truths 
contained  in  the  Bible  except  such  as  are  contained  in  its  recit- 
als. Thus,  is  man  immortal?  is  there  a  future  state?  shall  we 
live  again?  and  if  a  future  state  of  being,  Avhat  is  the  character 
of  that  state?  one  of  happiness  or  misery?  is  our  future  state  of 
being  dependent  upon  our  actions  here?  has  virtue  any  reward 


AUTHENTICITY  OF  THE  SCRIPTURES.  463 

hereafter,  or  vice  any  punishment?  these  are  questions  that 
strongly  urge  upon  our  consideration  the  necessity  for  a  rcrela- 
tion,  for  while  there  are  legal  evidences  of  the  authenticity  of 
the  Scriptures,  and  while  there  is  proof  that  the  Scriptures  come 
from  their  proper  repositories,  there  is  no  evidence  of  man's  im- 
mortality except  what  may  be  gleaned  from  the  analogies  of  na 
ture,  the  strong  desire  for  a  future  state  implanted  in  the  human 
heart,  and  from  the  express  declaration  of  revelation.  If  these 
facts  had  been  within  the  compass  of  legal  evidence  capable  of 
being  understood  and  comprehended,  then  the  argument  based 
upon  the  necessity  of  the  Scriptures  would  be  done  away  with, 
and  actual  truth  substituted  for  faith  which  is  well  and  aptly  de- 
fined by  the  Apostle  Paul  to  be  the  evidence  of  things  not  seen, 
the  existence  of  which  is  established  by  things  that  are  seen,  that 
is,  by  the  revelation  that  God  gave  to  us,  that  like  as  Christ  was 
i-aised  from  the  dead,  so  should  we  also  be  raised,  not  with  cor- 
ruptible natures,  but  with  incorruptible,  for  this  mortal  shall  put 
on  immortality  and  this  corruption  shall  put  on  incorruption. 

This  brings  us  to  the  consideration  of  the  question,  Are  the 
miracles  recorded  in  the  Bible,  and  the  death  and  resurrection  of 
Jesus  Christ,  sufficiently  authenticated  to  challenge  our  belief? 
If  they  are  not,  then,  according  to  a  fixmilar  and  well  recognized 
rule  of  evidence,  the  whole  Scriptures  are  unworthy  of  credit. 
The  statements  are  of  facts  (not  hearsa})  detailed  by  witnesses. 
The  miracles  were  performed,  if  performed  at  all,  in  public,  and 
not  in  private.  The  crucifixion  is  represented  as  taking  place  in 
the  presence  of  a  vast  multitude,  and  was  known  to  the  whole  city 
of  Jerusalem  and  to  all  the  strangers  and  sojourners  there.  The 
resurrection  of  Christ  was  equally  as  publicly  known  and  as  well 
authenticated  as  his  death.  If  he  performed  no  miracles;  if  he 
did  not  subdue  the  elements,  control  disease,  conquer  and  cast 
out  evil  spirits,  then  the  whole  Bible,  with  all  its  superior  moral- 
ity, with  all  its  adaptation  to  our  wants  and  necessities,  with  all 
our  hopes  of  immortality  inspired  by  it,  with  every  incentive  to 
a  virtuous  life  presented  by  it,  is  a  mere  illusion.  When  John, 
from  his  prison,  sent  his  disciples  to  ask  Jesus,  of  Avhose  miracles 
and  fame  he  had  heard  so  much,  'AVho  art  thou?"  lie  said  to 
them,  "  Go  show  .John  again  the  things  that  ye  hear  and  see, 
how  the  blind  receive  their  sight,  the  lame  w^alk,  the  lepers  are 


464  ECCLESIASTICAL  LAW. 

cleansed,  the  deaf  liear,  the  dead  are  raised  up,  and  the  poor 
liave  the  Gospel  preached  to  them."  If  none  of  these  miracles 
were  performed,  then  it  is  in  vain  to  talk  about  Jesus  Christ  be- 
ing a  good  man,  much  less  about  his  being  the  Son  of  God.  If 
none  of  these  miracles  were  performed  he  was  guilty  of  dissimu- 
lation in  sending  this  message  to  Jolm.  No  deceiver,  no  Egyp- 
tian magician,  no  Chaldean  astrologer,  was  ever  guilty  of  more 
deliberate  falsehood  or  baser  imposition.  But  in  favor  of  the 
miracles  he  performed  we  place  in  the  scale,  as  we  have  legally 
the  right  to  do  to  balance  the  improbabilities  of  miracles,  the 
purity  of  his  life,  the  adaptability  of  his  doctrines  to  our  wants, 
the  confusion  of  his  enemies,  and  the  certainty  founded  on  direct 
and  positive  proof  by  eye-witnesses  that  miracles  were  per- 
formed— not  one  or  two  in  the  obscure  and  remote  districts, 
away  from  the  principal  central  cities,  but  numerous  ones  all  over 
the  land — performed  in  the  presence  of  his  enemies,  in  the  pres- 
ence of  priests  and  of  Levitcs,  of  lawyers  and  doctors,  of  Jew- 
ish proselj-tes  and  strangers  from  every  country  that  had  any 
intercourse  with  the  Jews,  so  that  the  knowledge  of  these  mira- 
cles was  carried  wherever  they  went — whether  to  Rome,  Athens, 
or  Corinth ;  whether  to  Macedonia,  S])ain,  or  Ethiopia.  It  is  in 
vain  to  oppose  the  truth  of  the  performance  of  miracles  by  the 
simple  assertion  that  they  were  improbable,  or  were  not  in  ac- 
cordance with  the  previously  received  opinions  of  mankind. 
There  are  many  things  that  appear  to  be  improbable  before  they 
are  performed,  about  which  men  might  have  been  more  skep- 
tical tlian  of  the  performance  of  miracles.  What  to  one  mind  is 
improbable  to  another  mind,  more  highly  gifted,  may  not  only 
appear  probable,  but  may  be  capable  of  actual  mathematical 
demonstration.  Thus  the  King  of  Siam  rejected  the  statement 
of  the  Dutch  embassador  tliat  in  his  country  Avater  sometimes 
congealed  into  a  solid  mass,  for  it  was  at  variance  with  liis  own 
experience  and  with  the  experience  of  all  others  with  whom  he 
had  come  in  contact.  Before  the  age  of  steam,  its  agency  as  a 
propelling  power  appeared  improbable  ;  belbre  the  time  of  the 
discovery  of  the  electric  telegraph — the  art  of  printing  at  a  dis- 
tance— men  might  well  ha\e  said  that  lightning  was  incapable  of 
being  employed  as  an  agency  for  the  communication  of  thought, 
and  men  might  Avell  have  said,  as  Job  did  when  the  Lord  inquired 


AUTHENTICITY  OF  THE  SCRIPTURES.  4G5 

of  liim  if  he  could  send  the  liglitning  of  lieaven  to  go  and  say 
Here  we  are,  that  it  is  too  wonderful  for  me,  but  now  who  doubts'" 
that  both  of  tliese  agencies  can  be,  and  have  been,  utilized?  So 
we  might  well  doubt  the  existence  of  miracles  if  miracles  had 
never  been  performed;  but  lie  who  was  lame  and  was  healed; 
he  who  was  blind  and  afterwards  received  his  sight ;  they  who 
were  lepi'ous  and  were  cleansed,  after  the  miracles  of  Jesus  and 
the  apostles  were  performed  upon  them,  had  as  little  reason  to 
doubt  as  we  now  have  the  power  of  the  steam-engine  or  the 
agency  of  the  telegraph.  It  is  no  longer  a  question  of  proba- 
bilities about  which  men  may  differ  and  speculate.  It  is  the  legal 
evidence  of  the  existence  of  a  fact  based  upon  legal  and  compe- 
tent proof,  that  we  are  bound  to  believe;  for  no  man  has  the  right 
to  discredit  competent  moral  and  legal  evidence  because  such 
evidence  may  not  happen  to  accord  with  his  own  previous  infor- 
mation and  experience,  for  no  man  has  the  right  to  assume  that 
his  own  experience  is  the  only  basis  of  his  own  knoAvledge. 

In  conclusion,  we  may  well  concede  the  f;^ct  that  if  Jesus 
Christ  was  a  mere  man,  possessed  of  human  powers  only,  with  no 
divinity  in  him,  the  proof  of  miracles  and  the  authenticity  of  the 
Scriptures  is  not  made  out,  and  men  may  well  call  them  in  ques- 
tion; but  on  the  other  hand,  if  he  was  divine  as  he  claimed  to  be, 
if  he  came  forth  from  the  bosom  of  the  Father,  if  he  was  clothed 
with  all  the  powers  and  attributes  of  divinity,  if  the  claim  that 
he  made  for  himself  that  all  power  in  heaven  and  in  earth  be- 
longed to  him,  if  he  had  power  to  lay  down  his  life  and  to  take 
it  again,  if  his  wisdom  was  from  above,  if  he  was  possessed  of  a 
duality  of  natures — the  divine  and  the  human — if  he  had  a  pre- 
existence,  if  his  office  and  mission  to  earth  Avas  to  exalt  men  from 
a  state  of  pollution  to  a  state  of  holiness  and  to  fit  and  prepare 
mankind  for  a  future  state  of  being  in  which  their  actions  here 
determines  their  status  there, — then  we  insist  that  miracles  are  not 
only  possible,  but  probable,  and  that  men  should  act  with  refer- 
ence to  the  probable  truths  of  the  Bible  as  they  act  with  refer- 
ence to  probabilities  in  all  the  graver  affairs  of  life;  and  Avith 
this  volume  of  evidence  before  us,  Ave  are  able  to  shift  the  onus 
of  proof  upon  infidelity,  and  say,  in  the  light  of  legal  evidence, 
that  it  is  as  impossible  to  set  bounds  to  infinite  power  as  it  is  to 
set  bounds  to  space,  and  because  thereof  miracles,  Avhen  vieAved 


406  ECCLESIASTICAL  LAW. 


from  a  legal  stand-point,  may  be  regarded  as  well  authenticated 
as  the  evidence  of  any  other  fact.-^ 


^  Mr.  Hume's  argument  is  thus  refuted  by  Lord  Brougham.  Here  are  two 
answers  to  which  the  doctrine  proposed  by  Mr.  Hume  is  exposed,  and  either  ap- 
pears sutficient  to  shake  it :  "  First,  our  belief  in  the  uniformity  of  the  laws  of 
nature  rests  not  altogether  upon  our  own  experience.  We  believe  no  man  ever 
was  rai.sed  from  the  dead  not  merely  because  we  ourselves  never  saw  it — for  that 
would  be  a  very  limited  ground  of  deduction,  and  our  belief  was  fixed  on  the 
subject  long  before  we  had  any  considerable  experience — fixed  chiefly  by  author- 
ity, that  is,  by  deference  to  other  men's  experience.  We  found  our  confident 
belief  in  this  negative  position  partly,  perhaps  chiefly,  upon  the  testimony  of 
others,  and,  at  all  events,  our  belief  that  in  times  before  our  own  the  same  posi- 
tion held  good  must,  of  necessity,  be  drawn  from  our  trusting  the  relations  of 
other  men  ;  that  is,  it  depends  upon  the  evidence  of  testimony.  If,  then,  the 
existence  of  the  law  of  nature  is  proved,  in  great  part  at  least,  by  such  evidence, 
can  we  wholly  reject  the  like  evidence  when  it  comes  to  prove  an  exception  to 
the  rule — a  deviation  from  the  law?  The  more  numei'ous  are  the  cases  of  the 
law  being  kept,  the  more  rare  are  those  of  its  being  broken,  the  more  scrupu- 
lous, certainly,  ought  we  to  be  in  admitting  the  proof  of  the  breach ;  but  that  tes- 
timony is  capable  of  making  good  the  proof  there  seems  no  doubt.  In  truth,  the 
degree  of  excellence  and  of  strength  to  which  testimony  may  arise  seems  almost 
indefinite.  There  is  hardly  any  cogency  which  it  is  not  capable,  by  possible  sup- 
position, of  attaining ;  the  endless  multiplication  of  witnesses,  the  unbounded 
variety  of  their  habits  of  thinking,  their  prejudices,  their  interests,  afford  the 
means  of  conceiving  the  force  of  their  testimony  augmented  ad  injinitum,  be- 
cause these  circumstances  afford  the  means  of  diminishing  indefinitely  the 
chances  of  their  being  all  mistaken,  all  misled,  or  all  combined  to  deceive  us. 
Let  any  man  try  to  calculate  the  chances  of  a  thousand  persons  who  come  from 
difl'erent  quarters  and  never  saw  each  other  before,  and  who  all  vary  in  their 
habits,  stations,  opinions,  interests,  being  mistaken  or  combining  to  deceive  us 
when  they  give  the  same  account  of  an  event  as  having  happened  before  their 
eyes — these  chances  are  many  hundreds  of  thousands  to  one.  And  yet  we  can 
conceive  them  multiplied  indefinitel}^,  for  one  hundred  thousand  such  witnesses 
may  all,  in  like  manner,  bear  the  same  testimony,  and  they  may  all  tell  us  their 
story,  written  twenty-four  hours  after  the  transaction  and  in  the  next  parish,  and 
yet,  according  to  Mr.  Hume's  argument,  we  are  bound  to  discredit  them  all  be- 
cause they  speak  to  a  thing  contrary  to  our  own  experience  and  to  the  accounts 
which  other  witnesses  have  formerly  given  us  of  the  laws  of  nature,  and  which 
our  forefathers  had  handed  down  to  us  as  derived  from  witnesses  who  lived  in  the 
olden  time  before  them.  It  is  unnecessary  to  add  that  no  testimony  of  the  wit- 
nesses whom  we  are  supposing  to  concur  in  their  relation,  contradicts  any  testi- 
mony of  our  own  senses.  If  it  did,  the  argument  would  resemble  Archbishop 
Tillotson  upon  the  Real  Presence,  and  our  disbelief  would  be  at  once  warranted." 
"  Secondly.  This  leads  us  to  the  next  objection  to  which  Mr.  Hume's  argu- 
ment is  liable,  and  which  we  have  in  part  anticipated  wliile  illustrating  the  first. 
He  requires  us  to  withhold  our  belief  in  circumstances  which  would  force  every 


AUTHENTICITY  OF  THE  SCRIPTURES.  467 

man  of  common  understanding  to  lend  his  assent  and  to  act  upon  his  supposi- 
tion of  the  story  told  him  being  true;  for  suppose  either  such  numbers  of  vari- 
ous witnesses  as  we  have  spoken  of,  or,  what  is  perhaps,  stronger,  suppose  a 
miracle  reported  to  us,  first  by  a  number  of  relators  and  then  by  three  or  four  of  the 
very  soundest  judges  and  the  most  incorruptibly  honest  men  we  know — men  noted 
for  their  difficult  belief  of  wonders,  and,  above  ail,  steadj'  unbelievers  in  mira- 
cles, without  any  bias  in  favor  of  religion,  but  rather  accustomed  to  doubt,  if  not 
disbelieve.  Most  people  would  lend  an  easy  belief  to  any  miracle  thus  vouched. 
But  let  us  add  tliis  circumstatice,  that  a  friend  on  his  death-bed  had  been  at- 
tended by  us,  and  that  we  had  told  him  a  fact  known  only  to  ourselves — some- 
tliing  that  we  had  secretly  done  the  very  moment  Ijcfore  we  told  it  to  the  dying 
man,  and  which  to  no  other  being  we  had  ever  revealed — and  that  the  credible 
witnesses  we  are  supposing  informed  us  that  the  deceased  appeared  to  them, 
conversed  with  tliem  a  day  or  two,  accomp:niyIng  them,  and,  to  vouch  the  fact  of 
his  reappearance  on  this  earth,  communicated  to  them  the  secret  of  which  we 
had  made  him  the  sole  depositary  the  moment  before  his  death  ;  accordinf"  to  Mr. 
Hume  we  are  bound  rather  to  believe  not  only  that  those  credible  witnesses  de- 
ceived us,  or  that  those  sound  and  unprejudiced  men  were  themselves  deceived 
and  fancied  things  without  real  existence,  but  further,  that  they  all  hit  hv  chance 
upon  the  discovery  of  a  real  secret,  known  only  to  ourselves  and  the  dead  man. 
Mr.  Hume's  argument  requires  us  to  believe  this  as  the  les.ser  improl)aI)ilitv  of 
the  two — as  less  unlikely  than  the  rising  of  one  from  the  dead;  and  vet  every 
one  must  feel  convinced  that  were  he  placed  in  the  situation  we  have  been  figur- 
ing he  would  not  only  lend  his  belief  to  the  relation,  but  if  the  relators  accom- 
panied it  with  a  special  warning  from  the  deceased  person  to  avoid  a  certain 
contemplated  act,  he  would,  acting  upon  the  belief  of  their  story,  take  the  warn- 
ing and  avoid  doing  the  forbidden  deed.  Mr.  Hume's  argument  makes  no  ex- 
ception, this  is  its  scope,  and  whether  he  chooses  to  push  it  thus  far  or  no,  nil 
miracles  are,  of  necessity,  denied  by  it,  without  the  least  regard  to  the  kind  or 
the  quality  of  the  proof  on  which  they  are  rested;  and  the  testimony  which  we 
have  supposed  accompanied  by  the  test  or  check  we  have  supposed,  would  fall 
within  the  grasp  of  the  argument  just  as  much,  and  as  clearly,  as  any  other 
miracle  vouched  by  the  more  ordinary  combinations  of  e\'idence" 

The  use  of  Mr.  Hume's  argument  is  this,  and  it  is  an  important  and  a  valu- 
able one:  It  teaches  us  to  sift  closely  and  rigorously  the  evidence  for  miraculous 
events.  It  bids  us  remember  that  the  probabilities  are  always,  and  must  always 
be,  incomparably  greater  against  than  for  the  truth  of  these  relations,  because 
it  is  always  far  more  likely  that  the  testimony  should  be  mistaken  or  false,  than 
that  the  general  laws  of  nature  should  be  suspended.  Further  than  this,  the 
doctrine  can  not  in  soundness  of  reason  bo  carried.  It  does  not  go  the  length 
of  proving  that  the  general  laws  can  not  by  force  of  human  testimony  be  shown 
to  have  been,  in  a  particular  instance,  and  with  a  particular  purpose,  suspended. 

Laplace,  in  his  "Essai  sur  les  Probabilites,"  maintains  that  the  more  ex- 
.traordinary  the  fact  attested,  the  greater  probability  of  error  or  falsehood  in  the 
attestor.  Simple  good  sense,  he  says,  suggests  this,  and  the  calculation  of  prob- 
abilities confirms  its  suggestion.  There  are  some  things,  he  adds,  so  extraordi" 
nary  that  nothing  can  balance  their  improbabilities;  the  probability  of  error  or 
of  the  falsehood  of  testimony  becomes  in  proportion  greater  as  the  fact  which 


468  ECCLESIASTICAL  LAW. 

is  attested  is  more  extraordinary.  And  lience  a  fact,  extraordinary  in  the  high- 
est possible  degree,  becomes  in  the  highest  possible  degree  improbable,  or  so 
much  so  that  nothing  can  counterbalance  its  improbability. 

This  argument  has  been  made  much  use  of  to  discredit  the  evidence  of  mir- 
acles, and  the  truth  of  that  divine  religion  which  is  attested  by  them,  but,  how- 
ever sound  it  may  be  in  one  sense,  the  application  of  it  is  fallacious.  The  fal- 
lacy lies  in  the  meaning  affixed  to  the  term  extraordinary.  If  Laplace  means 
a  fact  extraordinary  under  its  existing  circumstances  and  relations,  that  is,  a 
fact  remaining  extraordinary,  notwithstanding  all  its  circumstances,  the  position 
needs  not  here  to  be  controverted.  But  if  the  term  means  extraordinary  in  the 
abstract,  it  is  far  from  being  universally  true,  or  of  affording  a  correct  test  of 
truth  as  a  rule  of  evidence.  Thus,  it  is  extraordinary  that  a  man  should  leap 
fifteen  feet  at  a  bound,  but  not  extraordinary  that  a  strong  and  active  man 
should  do  it  under  a  sudden  impulse  to  save  his  life.  The  former  is  improbable 
in  the  abstract,  the  latter  is  rendered  probable  by  the  circumstances.  So  things 
extraordinary,  and  therefore  improbable,  under  one  hypothesis  become  the  reverse 
under  anotlier.  Thus  the  occurrence  of  a  violent  storm  at  sea,  and  the  utter- 
ance by  Jesus  of  the  words  ''  Peace,  be  still,"  succeeded  instantly  by  a  perfect 
calm,  are  facts  which,  taken  separately  from  each  other,  are  not  in  themselves 
extraordinar}'.  The  connection  between  the  command  of  Jesus  and  the  calm, 
as  cause  and  effect,  would  be  extraordinary  and  improbable  if  he  were  a  mere 
man,  but  it  becomes  perfectly  natural  and  probable,  when  his  divine  power  is 
considered.  Each  of  those  facts  is  in  its  nature  so  simple  and  obvious  that  the 
most  ignorant  person  is  capable  of  observing  it.  There  is  nothing  extraordi- 
nary in  the  facts  themselves,  and  the  extraordinary  coincidence  in  which  the 
miracle  consists  becomes  both  intelligible  and  probable  upon  the  hypothesis  of 
the  Christian.     See  the  Christian  Observer  for  October,  1838,  p.  617. 

Laplace  was  so  fascinated  with  this  theory,  that  he  thought  that  the  calculus 
of  probabilities  might  be  usefully  employed  in  discovering  the  value  of  the  dif- 
ferent methods  resorted  to  in  those  sciences  which  are  in  a  great  measure  con- 
jectural, as  medicine,  agriculture,  and  political  economy;  and  he  proposed  that 
there  should  be  kept  in  every  branch  of  the  administration  an  exact  register  of 
the  trials  made  of  the  different  measures  and  the  results,  whether  good  or  bad,  to 
Avhich  they  had  led.  See  the  Edinburgh  Eevieto,  Vol.  xxiii,  p.  .^35,  33G.  Na- 
poleon, who  appointed  him  minister  of  the  interior,  thus  described  him:  "A  ge- 
ometrician of  the  first  class,  he  did  not  reach  mediocrity  as  a  statesman ;  he 
never  viewed  any  sul)ject  in  its  true  light;  he  was  always  occupied  with  subtleties, 
his  notions  were  all  problematic,  and  he  carried  into  the  administration  the 
spirit  of  the  Infinitely  small."  See  the  Eiici/clopwdia  Bri/annica,  Art.  Laplace, 
Vol.  xiii,  p.  101  ;  Memoires  Ecrites  a  St.  Helena  i,  3.  The  injurious  effect  of  de- 
ductive reasoning  upon  the  minds  of  those  who  addict  themselves  to  this  method 
alone  to  the  exclusion  of  all  other  modes  of  arriving  at  the  knowledge  of  truth 
in  fact  is  shown  with  great  clearness  and  success  by  Mr.  Whewell,  in  the  ninth 
of  the  Bridgewater  Teatise,  book  iii,  chap.  G.  The  calculus  of  probabilities 
lias  been  applied  by  some  writers  to  judicial  evidence,  but  its  very  slight  value 
as  a  test  is  clearly  shown  in  an  able  article  on  presumptive  Evidence,  Law 
Mag.  Vol.  i,  p.  32,  N.  S. 


FORMS  AND  PRECEDENTS.  469 

CHAPTER  II. 

PRECEDENTS   FOR   CHURCH   TRIALS   AND   INVESTIGATIONS. 

In  drafting  charges  and  specifications  for  the  trial  of  an  ac- 
cused bishop  there  should  be  a  brief  statement  of  the  charge, 
defining  the  offense  by  its  generic  name,  such  as  Uhelj  slander, 
falseJwod,  etc.  Each  charge  should  be  accompanied  with  one  or 
more  specifications,  and  the  following  form  may  serve  to  illustrate 
the  manner  of  preparing  the  charges,  varying  such  charges  so  as 
to  meet  the  facts  or  evidence  relied  upon  for  a  conviction. 

FORMS  FOR  THE  TRIAL  OF  A  BISHOP. 

The  charges  and  specifications  preferred  against  a  bishop 
should  be  prepared  and  signed  by  the  presiding  elder  of  the  dis- 
trict in  which  the  immorality  is  alleged  to  have  been  committed, 
and  by  four  traveling  elders ;  and  may  be  in  the  following  form : 

(No.  1.) 

To  the  Judicial  Conference,  composed  of  the  Triers  of  Appeals,  summoned 

for  the  trial  of ,  one  of  the  bishops  of  the  Methodist  Episcopal 

Church. 
The  presiding  elder  of  the  district  in  which  the  immorality  hereinafter  com- 
plained of  is  alleged  to  have  been  committed,  and  four  other  travelino-  elders 

complain  to  said  conference  that  Bishop has  been  guilty  of  immorality;  and 

that  they  have  investigated  the  subject,  and  charge  him  therewith,  as  follows : 

Charge  First:  Publicly  disseminating  doctrines  which  are  contrary  to  the  Arti- 
cles of  Religion  contained  in  the  Discipline. 

Specif  cation  First — For  that  said  the ,  Bishop  of  the  Methodist  Epis- 
copal Church,  in  the  United  States  of  America,  in  the  district  of ,  presided 

over  by ,  on  the day  of ,  A.  D.  18 — ,  in  a  certain  sermon 

(or  discourse)  publicly  disseminated  and  declared  that  [J3e?-e  insert  the  substance 
of  the  languagel  contrary  to  the  rules  and  doctrine  of  the  Discipline. 

(Signed)  ,  Presiding  Elder. 

,  Th-aveling  Elder. 

,  Traveling  Elder. 

,  Traveling  Elder. 

,  Traveling  Elder. 

A  copy  of  the  charges  and  specifications  should  be  delivered 
to  or  forwarded  to  the  accused  bishop;  and  notice  thereof. 
accompanied  with  the  original  charges  and  specifications,  should 

31 


470  ECCLESIASTICAL  LAW. 

also  be  given  to  one  of  the  other  bishops,  who  should  convene  a 
judicial  conference  to  be  composed  of  the  triers  of  appeals  from 
the  five  neighboring  conferences  where  the  alleged  immorality  is 
charged  to  have  taken  place. 

The  form  of  the  notice  from  the  presiding  elder  and  the  four 
traveling  elders  may  be  as  follows : 

(No.  2.) 
To  Bishop . 

You  are  respectfully  informed  that ,  one  of  the  Bishops  of  the  Meth- 
odist Episcopal  Church  in  the  United  States  of  America,  has  been  accused  of 
immorality;  and  that  we,  the  undersigned,  have  investigated  said  charges,  and 
believe  them  to  be  of  such  a  character  as  that  they  should  be  inquired  into  by 
the  proper  tribunal  of  the  Church  having  jurisdiction  thereof;  and  herewith 
transmit  to  you  charges  and  specifications,  signed  by  us,  accusing of  im- 
morality, and  request  you  to  convene  a  judicial  conference  to  inquire  into  and  in- 
vestigate said  alleged  immorality. 

This  notice  should  be  signed  by  the  presiding  elder  and  four 
traveling  elders  who  prefer  the  charges. 

The  form  of  the  notice  from  the  bishop  to  the  Triers 
of  Appeals  may  be  as  follows : 

(No.  3.) 

To ,  07ie  of  the  Triers  of  Appeals^  etc. 

You  are  hereby  notified  that  a  judicial  conference  has  been  ordered  to  be 

convened  by  me  to  meet  at  the  city  of on  the day  of A.  D. 

18 — ,  for  the  purpose  of  investigating  and  trying  an  alleged  immorality,  charged 

to  have  been  committed  by  Bishop . 

(Signed)  ,  Bishop. 

In  addition  to  furnishing  the  accused  bishop  with  a  copy  of 
the  charges  and  specifications,  he  should  be  notified  by  the  bishop 
who  is  to  preside  at  the  trial  of  the  time  and  place  of  the  meet- 
ing of  the  judicial  conference,  and  such  notice  may  be  as  follows : 

(No.   4.) 

To  Bishop , 

You  are  respectfully  informed  that  charges  and  specifications  have  been 
preferred  against  you,  comj)laining  of  a  certain  immorality  (or  immoralities) 
and  that  I  have  ordered  that  a  judicial  conference  be  convened  to  meet  at  the 

city  of ,  on  the day  of  ^ ,  A.  D.  18 — ,  at  —  o'clock  A.  M.,  for 

the  purpose  of  investigating  said  immorality  (or  immoralities)  complained  of 
against  you,  at  whicKtime  and  place  you  can  appear,  defend  yourself,  and  vin- 
dicate your  reputation. 

(Signed)  . ,  Bishop. 


FORMS  AND  PRECEDENTS.  471 

The  form  of  the  record  when  the  judicial  conferer>ce  is  con- 
vened may  be  as  follows  : 

(No.  5.) 

At  a  Judicial  Conference,  convened  and  presided  over  by  Bishop , 


that  met  at  the  city  of ,  on  (he  day  of ,  A.  D.  18 — ,  con- 
vened for  the  trial  of  Bishop ,  present  {Here  insert  the  names  of  the  Triers 

of  Appeals  summoned,  etc.)  the  following  proceedings  were  had: — 

Bishop appeared  and  pleaded  to  the  charges  and  specifications  as 

follows:     {Here  insert  the  plea.)     Bishop challenged  peremptorily  the 

following  Triers  of  Appeals:  {Here  insert  the  names.)  And  said  Judicial  Confer- 
ence, for  the  trial  of  said  alleged  immorality,  was  composed  of  the  following 

named  Triers  of  Appeals:  {Here  insert  their  names.)     ,  a  traveling  elder, 

appeared  for  the  prosecution  in  support  of  the  charges  and  specifications. 
,  a  traveling  elder,  appeared  for  the  defense. 

The  prosecution,  to  maintain  the  issue  on  its  part,  called ,  who  testi- 
fied as  follows:  {Here  insert  testimony.)     Also  ,  who  testified  as  follows: 

{Here  insert  testimony.)  And  also  offered  the  following  documentary  evidence: 
{Here  insert  such  evidence.) 

The  following  question  was  asked  in  behalf  of  the  prosecution,  objected  to 
by  the  defendant,  and  objection  sustained  (or  objection  overruled) :  {Here  insert 
the  question  and  the  ruling  of  the  biiihop  presiding.)  (Where  the  objection  is 
overruled,  add  that  the  defendant  excepts,  if  such  is  the  fact.) 

This  was  all  tlie  evidence  for  prosecution  in  chief. 

The  accused  made  the  following  statements:   [Here  insert  his  statement.) 

The  defense   then  called   ,  as   a  witness,   who  testified  as  follows: 

{Here  insert  his  testimony.)  Also ,  who  testified  as  follows:  {Here  in- 
sert testimony.)     This  was  all  the  evidence. 

then  addressed  said  conference  in  behalf  of  the  prosecution,  and 

addressed  said  conference  in  behalf  of  the  defense,  and  the  argument 


was  closed  by for  the  prosecution. 

And  said  conference  went  into  deliberation  over  said  cause,  and,  after  due 
deliberation,  find  as  follows:  {Here  insert  the  finding  and  the  judgment  of 
the  conference.) 

The  finding  should  be  signed  by  all  the  members  of  the  con- 
ference who  concur.  If  there  are  members  of  the  conference 
that  do  not  concur  in  the  finding,  they  may  have  their  dissent  of 
the  finding  entered  of  record. 

Where  the  accused  bishop  is  convicted  by  the  judicial  con- 
ference he  may  appeal  from  the  decision  of  such  conference  to 
the  General  Conference,  and  such  appeal,  when  taken,  should  be 
entered  of  record,  and  should  be  in  the  following  form : 

(No.  6.) 

And  the  said ,  bishop,  etc.,  having  been  convicted,  and  judgment 

having  been  passed  upon  him  by  the  Judicial  Conference  aforesaid,  and  being  in- 


472  ECCLESIASTICAL  LAW. 

formed  thereof,  appeals  from  the  action  and  decision  of  said  Judicial  Conference 
to  the  General  Conference ;  it  is  ordered  that  the  record,  together  with  the  docu- 
mentary evidence,  depositions,  etc.,  be  transmitted  to  the  General  Conference. 

By  the  provisions  of  §  202  of  the  Discipline,  complaint  against 
the  administration  of  the  bishop  may  be  forwarded  to  the  General 
Conference  and  entertained  tliere,  provided  that  in  its  judgment 
due  notice  has  been  given ;  and  the  form  of  the  record  or  trial 
before  the  General  Conference  may  be  substantially  the  same  as 
the  record  of  a  judicial  conference. 

Where  a  bishop  is  charged  with  imprudent  conduct  under 
^  200  of  the  Discipline,  the  charges  and  specifications  should 
contain  an  averment  that  he  has  been  admonished  by  a  presiding 
elder  and  two  traveling  elders,  and  that  he  has  been  guilty  of  a 
second  offense,  has  been  admonished  by  one  of  the  bishops,  to- 
gether with  three  traveling  elders.  This  preliminary  labor  is 
jurisdictional,  and  unless  it  has  been  performed  the  judicial  con- 
ference would  have  no  authority  to  try  a  bishop  charged  with  im- 
prudent conduct. 

The  specification  under  §  200  of  the  Discipline  should  be 
substantially  the  same  as  for  immoral  conduct,  with  this  addition : 

And  said  presiding  elder,  having  talcen  with  him  two  traveling  elders,  ad- 
monished the  bishop  aforesaid  so  offending;  and  said  bishop  so  offending  not 
heeding  the  admonition  aforesaid,  was  guilty  the  second  time  of  imprudent  con- 
duct, and  afterwards  ,  one  of  the  bishops,  together  with  three  traveling 

elders,  called  upon  him,  reprehended  and  admonished  him  the  second  time,  and, 
notwithstanding  said  admonition,  he  still  persists  in  his  imprudent  conduct,  con- 
trary to  the  rules  of  the  Discipline,  etc. 

The  method  of  proceeding  against  accused  traveling  preach- 
ers or  ministers  may  be  as  follows  : 

(No.  7.) 
FORM   OF   COMPLAINT. 

To  the Annual  Conference  of  the  Methodist  Episcopal  Church  of  the 

United  States  of  America  : 

Charge  First — Libel 

Specification  First—  For  that  heretofore,  to  wit,  on  the day  of , 

A.  D.  18 — ,  at  and  within  said  conference,  A.  B.,  then  and  there  being  a  mem- 
ber of  said  conference,  did  maliciously  write  and  publish  of  and  concerning 
C.  D.,  the  following  false  and  libelous  matter;  that  is  to  say  (Here  copy  the 
writing  complained  of),  contrary  to  the  rules  of  the  Discipline. 

Specification  Second. — For  that  the  said  A.  B.,  heretofore,  to  wit,  on  the 
day  of ,  A.  D.  18 — ,  at  and  within  the  conference  aforesaid,  did 


FORMS  AND  PRECEDENTS.  473 

write  and  publish  certain  other  false,  defamatory,  and  libelous  matter  of  and  con- 
cerning the  said  C.  D.,  in  the  words  following,  that  is  to  say  {Here  copy  the 
writing)^  in  violation  of  the  rules  of  the  Discipline. 

Specification  Third  {where  the  charge  is  not  for  writing  hut  for  publishing 

a  Uhel. — For  that  the  said  A.  B.  heretofore,  to  wit,  on  the day  of , 

A.  D.  18 — ,  at  and  within  the  Conference,  uttered  and  published  of  and  con- 
cerning C.  D.,  the  following  false,  defamatory,  and  libelous  matter;  that  is  to 
say  {Here  copy  the  ivriting). 

If  the  charge  is  for  verbal  slander,  after  the  caption,  as  in 
No.  7,  you  may  proceed  as  follows  to  state  the  offense : 

Charge — Slander. 
Specification  First. — For  that  A.  B.,  a  member  of  said  Conference,  hereto- 
fore, to  wit,  on  the day  of ,  A.  D.  18 — ,  at  and  within  the  Confer- 
ence aforesaid,  did  falsely  speak,  utter,  and  publish,  in  the  hearing  of  divers 
respectable  persons,  the  following  false  and  slanderous  words  of  and  concerning 
C.  D.,  that  is  to  say,  "he  (meaning  the  said  C.  D.)  is  a  thief,"  thereby  intending 
to  charge  the  said  C.  D.  of  the  crime  of  larceny,  contrary  to  the  rules  of  the 
Discipline. 

Charge  Second. 

Specification  First. — The  said  A.  B.,  on  the day  of ,  A.  D.  1 8 — , 

at  and  within  the  Conference  aforesaid,  did  falsely,  willfully,  and  knowingly,  speak 
the  following  words,  that  is  to  say  {Here  insert  the  falsehood  complained  of), 
contrary  to  the  rules  of  the  Discipline. 

Where  the  charge  is  for  larceny,  either  against  a  minister  or 
member,  the  charge  and  specifications  may  be  as  follows,  after 

the  caption: 

(No.  8.) 

Charge  First — Theft. 
Specification  First — For  that  A.  B.,  a  member  of  said  Conference  {or  of 

said  Ohurch),  heretofore,  to  wit,  on   the  day  of ,  A.  D.  18 — ,  at 

and  within  the  Conference  aforesaid,  did  take,  steal,  and  carry  away  one  pocket- 
book,  the  property  of  C.  D.,  in  violation  of  the  Discipline  of  the  Church. 

Charge  Second — Burglary,  with  an  intent  to  steal,  etc. 

Specification  First. — For  that  the  said  A.   B.,  heretofore,  to  wit,  on  the 

day  of ,  A.  D.  18 — ,  at  and  within  the  Conference  aforesaid,  in 

the  night-time,  did  break  into  and  enter  a  dwelling  house  of  C.  D.,  with  intent 
then  and  there  to  steal,  contrary  to  the  Discipline,  etc. 

If  the  intent  be  to  commit  some  other  offense  in  connection 
with  the  burglarious  entry,  the  charge  should  be  varied  so  as  to 
correspond  with  the  evidence  ;  or  as  many  different  specifications 
may  be  embraced  under  the  charge  as  are  necessary,  varying  the 
intent  in  each,  where  it  is  doubtful  what  the  actual  intent  was. 


474  ECCLESIASTICAL  LAW. 


Where  the  charge  is  for  adultery  or  fornication,  after  the  cap- 
tion, proceed  as  follows : 

(No.  9.) 

Charge  First — Adultery. 

Specification  First — For  that  A.  B.,  heretofore,  to  wit,  on  the  day 

of ,  A.  D.  18 — ,  at  and  within  the  Conference  aforesaid,  being  a  member 

of  said  Conference  {or  Church),  being  a  married  man,  did  commit  the  crime  of 
adultery  with  E.  F.,  a  married  woman,  the  said  E.  F.  not  being  the  wife  of  the 
said  A.  B.,  contrary  to  the  rules  of  the  Discipline. 

Charge  Second — Fornication. 

Specification  First — For  that  the  said  A.  B.,  heretofore,  to  wit,  on  the 


day  of ,  A.  D.  18 — ,  at  the  Conference  aforesaid,  and  a  member  of  said 

Conference  (or  Church,)  did  commit  the  crime  of  fornication  with  G.  H.,  an  un- 
married woman,  contrary  to  the  rules  of  the  Discipline. 

In  the  precedents  that  we  have  given,  we  have  averred  the 
relationship  that  the  accused  sustains  to  the  Church ;  not  that  it 
was  necessary  so  to  do — for  the  conference  or  Church  tribunal 
will  take  judicial  notice  of  that  fact — but  in  order  to  avoid  any 
question  that  may  arise  on  that  point. 

It  is  sufficient,  in  all  cases,  to  charge  the  offense  in  the  generic 
language  by  which  it  is  known,  and  under  such  charge  as  many 
different  species  of  offense  may  be  included,  by  specification  or 
specifications,  as  the  prosecutor  sees  proper  to  insert ;  provided, 
however,  that  each  specification  must  sustain  the  charge  and  be 
germane  to  it. 

Ordinarily  two  distinct  crimes  should  not  be  embraced  under 
one  charge  ;  but  there  are  exceptions  to  this  rule,  for  a  party  may 
commit  two  or  more  offenses  by  the  same  act,  and  where  that  is 
the  case  they  constitute  properly  but  one  legal  offense,  as  in  bur- 
glary, accompanied  with  larceny. 

The  prosecutor  in  preparing  the  charges  and  specifications 
should  be  careful,  in  setting  out  the  offense,  so  to  describe  it  in 
each  specification  that  it  embodies  all  the  essential  prerequisites 
of  the  crime,  and  each  should  be  accompanied  with  an  averment 
of  time  and  place,  so  as  to  apprise  tlio  accused  more  certainly  of 
the  nature  of  the  charge  upon  which  he  is  to  be  arraigned  and 
tried.  After  the  charges  are  regularly  drawn  up  and  signed,  the 
accused  should  be  served  with  a  copy  thereof,  accompanied  with 
a  notice  that  the  charges  and  specifications  would  be  presented  to 
the  next  annual  conference. 


FORMS  AND  PRECEDENTS  475 

After  the  meeting  of  the  conference  the  charges  and  specifi- 
cations, accompanied  with  a  copy  of  the  notice  and  a  statement 
that  the  accused  had  been  served  with  a  copy  thereof  should  be 
presented  in  open  conference.  This  confers  jurisdiction  upon 
the  conference,  and  it  m.-iy  either  try  the  accused  or  refer  the 
matter  to  the  select  number  for  trial. 

Without  an  order  of  reference  the  seleot  number  have  no 
authority  or  jurisdiction  over  the  accu-sed;  they  exercise  only  a 
delegated  authority  over  that  class  of  cases  where  such  authority 
is  conferred  by  the  Discipline. 

The  order  of  reference,  where  the  trial  is  referred  to  a  select 
number,  should  be  in  the  following  form  : 

(No.  lO.) 

At  a  meeting  of  the  Annual  Conference,  begun  and  held  at  the  city 

of ,  on  the day  of ,  A.  D.  18 — ,  the  followitig,  among  other 

proceedings,  were  had,  to  wit:  Charges  and  specifications  preferred  by 

against  Brother  ,  accusing  him  of ;  and  said  charges  and  speci- 
fications were  referred  to  a  select  number,  members  of  said  Annual  Conference, 
for  trial;  said  select  number  consisting  of  {Here  insert  the  names). 

After  the  order  of  reference,  the  select  number  should  assem- 
ble and  arraign  the  accused  before  them  if  he  has  not  been 
previously  arraigned  before  the  conference.  Where  he  has  been 
arraigned  before  the  conference,  the  records  of  the  conference 
and  the  order  of  reference  should  show  the  fact. 

No  order  of  reference  should,  however,  be  made  to  a  select 
number  until  the  accused  member  of  the  conference  has  been 
duly  notified  and  served  with  a  copy  of  the  charges  and  specifi- 
cations a  sufficient  time  prior  to  the  oi'der  of  reference  to  give 
him  time  either  to  plead,  prepare  for  trial,  or  imparl. 

The  notice  may  be  given  at  any  time  before  the  meeting  of 
the  conference  ;  pi'ovided,  that  a  reasonable  time  should  intervene 
between  the  time  of  the  service  of  the  notice  and  the  meeting  of 
the  conference. 

The  select  number  should  keep  a  regular  record  of  its  pro- 
ceedings, which  should  be  as  follows : 

(No.  11.) 

At  a  meeting  of  a  select  number,  members  of  the  Annual  Conference,  to 

whom  certain  charges  and  specifications  preferred  by against  Brother 

,  and  by  said  Conference  referred  for  trial  to  {Here  name  the  members  of 


476  ECCLESIASTICAL  LAW. 


the  select  number),  said  select  number,  being  convened  for  the  trial  of  the  said 

;  the  said appeared  before  said  select  number,  and  the  charges 

and  specifications  being  read  to  hira  by  the  secretary,  he  pleaded  thereto  as  fol- 
lows :  {Here  insert  plea) ;  and  issue  being  joined  thereon,  the  said appear- 
ing as  counsel  for  the  prosecution,  introduced  the  following  witness :  {Sere  insert 
witness's  name),  who  testified  as  follows :  {Here  insert  testimony)  ;  also  the  follow- 
ing witness:  {Here  insert  name  of  uniness),  who  testified  as  follows  {Here  insert 
testimony);  said  witness  being  asked  the  following  question,  {Here  insert  the 
question),  the  same  was  objected  to  by  the  defendant;  objection  overruled  by  the 
chairman,  to  which  ruling  the  accused  excepted. 

The  prosecution  also  read  the  following  depositions :  {Here  insert  the  dep- 
ositions). 

This  was  all  the  evidence  on  the  part  of  the  prosecution. 

The  accused  preacher  then  made  the  following  statement:  {Here  insert  state- 
ment), and  also  called ,  who  testified  as  follows:  {Here  insert  testimony), 

also ,  who  testified  as  follows :   {Here  insert  testimony). 

This  was  all  the  evidence  on  the  part  of  the  defense. 

The  prosecution  then  called ,  who  testified  in  reply  as  follows  {Here 

insert  testimony). 

This  was  all  the  evidence.  Thereupon  the  select  number  retired  to  consider 
of  the  cause,  and  after  due  consideration  and  deliberation  find  the  accused 
{either  not  guilty  or  guilty)  in  manner  and  form  as  charged  in  specification 
"First"  under  charge  "  First,"  and  not  guilty  as  charged  in  specification  one 
under  charge  "  Second."  (The  record  should  show  the  finding  in  accordance 
with  the  facts,  and  also  the  judgment  of  the  select  number;  and  the  finding  and 
judgment  should  be  regularly  signed  by  all  of  the  select  number  who  concur 
therein,  and  should  be  then  certified  by  one  or  more  of  the  secretaries  of  the 
Conference  appointed  to  act  as  secretary  of  the  select  number.) 

The  certificate  of  the  secretary  may  be  as  follows : 

(No.  12.) 
I,  J.  F.,  Secretary  of  the  select  number  to  whom  was  referred  the  trial  of 
the  said  A.  B.  by  the  Annual  Conference,  do  hereby  certify  that  the  foregoing  is 
a  full  and  correct  record  of  the  proceedings  therein;  and  I  return  the  same  to 
the  said  conference,  accompanied  with  the  bill  of  charges,  evidence  taken,  and 
decision  rendered,  with  all  other  documents  brought  before  said  select  number 
upon  the  trial,  having  marked  the  same  exhibits  "A,"  "  B,"  and  "  C,"  respec- 
tively, to  this  record. 

.    In  testimony  whereof   I  have  hereunto  set  my  hand,  this  day  of 

,  A.  D.  18—. 

(Signed) ,  Secretary. 

The  record  of  the  select  number  should  be  regularly  returned 
by  either  the  chairman  or  the  secretary  of  the  select  number  into 
the  annual  conference,  together  with  the  bill  of  charges,  the  evi- 
dence taken,  and  the  decision  rendered,  with  all  the  other  docu- 
mentary evidence  pertaining  to  the  trial. 


FORMS  AND  PRECEDENTS.  477 

The  accused  when  convicted  may  appeal,  and  the  appeal 
should  be  regularly  taken  during  the  session  of  the  annual  con- 
ference from  the  decision  of  the  annual  conference  to  tlie  judicial 
conference,  instead  of  being  taken  from  tiie  decision  of  the  select 
number;  for  in  any  view  that  may  be  taken  of  the  question,  it  is 
the  decision  of  the  annual  conference  by  intendment,  wliether  it 
be  referred  to  a  select  number  or  otherwise,  and  the  form  of  the 
record  of  appeal  may  be  as  follows : 

(No.  13.) 

Upon  the  coming  in  of  the  report  of  the  select  number  finding  the  said 

brother guilty  as  charged  in  said  complaint,  and  pronouncing  sentence 

thereon,  the  said prayed  an  appeal  from  the  decision  of  said  conference 

to  the  decision  and  determination  of  a  judicial  conference,  which  was  accord- 
ingly allowed,  and  it  was  ordered  by  the  conference  that  the  record  and  all  the 
documents  relating  to  the  case,  together  with  the  charge  (or  charges)  and  the 
specification  (or  specifications)  duly  certified  by  the  secretaries  of  the  confer- 
ence be  transmitted  to  the  judicial  conference  to  be  convened  for  the  trial  of 
said  cause. 

The  form  of  the  certificate  of  the  secretaries  of  the  confer- 
ence may  be  substantially  in  the  form  given  for  the  certificate  of 
the  secretary  of  the  select  number. 

Upon  an  appeal  from  an  annual  to  a  judicial  conference  by  a 
traveling  minister  or  preacher,  he  becomes  the  appellant,  and  it 
is  his  duty  to  prosecute  the  appeal,  and  to  take  notice  of  the 
meeting  of  the  judicial  conference,  and  of  every  subsequent  step 
taken  in  the  cause,  for  in  contemplation  of  law  lie  is  the  actor 
instead  of  t'eus. 

Upon  the  appeal  being  taken  it  is  made  the  duty  of  the  pres- 
ident of  the  annual  conference  when  notice  of  the  appeal  is 
given  to  proceed  with  due  regard  to  designate  three  conferences, 
conveniently  near  that  from  which  the  appeal  is  taken,  whose 
triers  of  appeals  shall  constitute  a  judicial  conference;  and  it  is 
also  the  duty  of  the  president  of  the  annual  conference  to  fix  the 
time  and  place  of  the  meeting  of  the  judicial  conference,  and  to 
give  notice  thereof  to  all  concerned;  that  is,  to  the  triers  of 
appeals  of  the  three  conferences  selected,  the  party  engaged  in 
the  prosecution,  and  the  defendant. 

The  same  form  that  we  have  given,  notifying  the  triers  of 
appeals  for  the  trial  of  an  accused  bishop,  is  substantially  suffi- 
cient to  be  used  here  varying  it  according  to  the  facts. 


178  ECCLESIASTICAL  LAW. 

The  form  of  the  notice  to  be  given  by  the  president  of  the 
annual  conference  to  the  parties  may  be  as  follows: 

(No.  14.) 


Sir, — You  are  hereby  notified  that  a  Judicial  Conference  has  been  convened 

by  order  of  the  President  of  the  hist  Annual  Conference,  held  at ,  in  the 

State  of ,  for  the  trial  of ,  who  has  appealed  from  said  Annual 

Conference  to  a  Judicial  Conference;  and  the  meeting  of  said  Judicial  Confer- 
ence has  been  fixed  to  take  place  at  the  city  of  ,  on  the day  of 

,  A.  D.  18 — ,  at  —  o'clock  A.  M.  of  said  day,  at  which  you  can  appear  and 

be  heard  in  said  cause. 

The  form  of  the  record  should  be  substantially  the  same  as 
the  record  of  the  trial  of  a  bishop.  It  should  show  the  convening 
of  the  judicial  conference,  the  bishop  who  presided,  the  names 
of  the  persons  who  composed  the  judicial  conference,  the  per- 
emptory challenge  or  the  challenges  for  cause,  the  grounds  of 
appellant's  appeal,  the  different  preachers  who  appeared  for  the  ap- 
pellant and  appellee,  and  the  decision  of  the  judicial  conference. 

And  the  forms  that  we  have  given  are  practically  sufficient 
to  enable  the  secretary  to  make  up  and  authenticate  the  record. 

Where  there  is  a  reversal  of  the  decision  of  the  annual  con- 
ference by  the  judicial  conference,  there  should  be  a  procedendo 
awarded,  which  should  be  in  the  following  form  : 

(No.  15.) 

At  a  meeting  of  the  Judicial  Conference  held  at  the  city  of ,  in  the 

State  of ,  on  the day  of ,  A.  D.  18 — ,  for  the  purpose  of 

inquiring  into  alleged  error  in  the  records  and  proceedings  of  the An- 
nual Conference  with  reference  to  the  trial  and  conviction  of : — 

You  are  hereby  respectfully  informed  that  said  Judicial  Conference,  after 
inspecting  said  records  and  proceedings  find  that  there  was  manifest  error 
therein ;  and  for  the  purpose  of  correcting  said  error,  we  have  remanded  tho 
same  to  said  Annual  Conference  for  a  new  trial. 

In  testimony  whereof  I, ,  Secretary  of  said  Judicial  Conference,  do 

hereby  set  my  hand  this day  of ,  A.  D.  18 — . 

(Signed) ,  Secretanj. 

The  record  of  the  General  Conference,  upon  an  appeal  from 
a  Judicial  Conference,  may  be  as  follows: 

(No.  16.) 
At  a  meeting  of  the  General  Conference,  convened  on  the  first  day  of 

May,  A.  D.  18 — ,  at  the  city  of ,  the  following,  among  other  proceedings, 

were  bad: 


FORMS  AND  PRECEDENTS.  479 


The  appeal  of  the  Rev. from  the  decision  of  the  Judicial  Conference 

coming  up  on  motion  of ,  was  referred  to  the  Judiciary  Committee  for  re- 
view and  decisions  on  questions  of  law  contained  in  said  record. 

And  the  same  having  been  reviewed  and  examined  by  said  Judiciary  Com- 
mittee, upon  the  report  of  said  Judiciary  Committee,  and  upon  due  considera- 
tion of  the  errors,  or  the  alleged  errors,  in  said  record,  it  is  ordered  and  deter- 
mined that  said  record,  and  the  decision  of  said  Judiciary  Committee,  be  in  all 
things  sustained  and  affirmed  (or  in  all  things  reversed,  vacated,  and  set  aside; 

and  that  said  cause  be  remanded  to  the Annual  Conference  from  which 

it  was  appealed  to  the  Judicial  Conference,  for  further  proceedings  not  incon- 
sistent with  decision  of  the  General  Conference). 

A  copy  of  this  record,  properly  certified  by  the  secretaries, 
should  be  transmitted  to  the  next  annual  conference  to  be  held 
in  the  Conference  in  which  the  proceedings  originated. 

When  the  record  is  transmitted  to  the  annual  conference,  it 
is  their  duty  to  proceed  de  novo. 

PROCEEDINGS  AGAINST  PREACHERS  ON  TRIAL, 
Or  Local  Preachers  Before  the  Quarterly  Conference. 

(No.  17.) 

To  the  Quarterly  Conference  of  the Station  {or  Circuit)  of  the  Methodist 

Episcopal  Church. 

Charge  First — Dishonesty. 

Specification  First — For  that  E.  F.,  a  preacher  on  trial,  heretofore,  to  wit, 

on  the day  of  ,  A.  D.  18 — ,  at  and  in  the  Circuit  aforesaid,  being 

amenable  to  said  Quarterly  Conference,  on  which  he  travels,  did  falsely  and 
fradulently  represent  a  certain  horse,  sold  by  him  to  I.  J.,  to  be  sound,  etc., 

whereas  said  horse  was  unsound  and  of  little  value,  having  the  disease  of , 

which  fact  was  well  known  to  the  said  E.  F.,  but  notwithstanding  the  premises, 
he  represented  him  to  be  sound,  contrary  to  the  rules  of  the  Discipline. 

(Signed) ,  Member  of  M.  E.  Chtirch. 

Where  preliminary  labor  is  required  by  the  Discipline  before 
a  preacher  is  liable  to  be  dealt  with  canonically,  we  think  that  it 
is  essential  to  the  jurisdiction  of  the  conference — whether  annual, 
district,  or  quarterly — that  it  should  be  averred  in  the  complaint, 
or  in  the  charges  and  specifications,  that  such  preliminary  steps 
required  by  the  Discipline  have  been  taken  ;  for  without  such 
averment  there  is  nothing  to  show  that  the  conference  has  juris- 
diction; and  the  averment  may  either  precede  the  charges  and 
specifications  or  it  may  be  embodied  in  the  specifications ;  but 


480  ECCLESIASTICAL  LAW. 

where  set  forth  in  the  specifications  it  must  be  set  forth  in  each 
specification. 

We  give  a  precedent  in  the  case  of  improper  temper,  whei*e 
the  Discipline  makes  it  the  duty  of  the  preacher  in  charge  to 
reprehend  a  local  preacher :  ^ 

(No.  18.) 

To  the    Quarterly  Conference  of  the  Methodist  Episcopal  Church  of 

Station  (or  Circuit) : 

For  tliat  A.  B.,  a  local  elder  of  said  Church,  belonging  to  and  under  the 
jurisdiction  of  said  quarterly  conference,  has  been  charged  with  being  guilty  of 
improper  temper,  such  as  was  unbecoming  a  member  of  said  Church  and  his 
official  station  in  said  Church;  and  being  so  charged  was  afterwards  repre- 
hended by  the  preacher  having  charge  of  said  station  (or  circuit),  yet,  notwith- 
standing he  was  so  reprehended,  the  said was  guilty  of  a  second  trans- 
gression, and  the  said  preacher  in  charge  called  to  his  aid  three  faithful  friends 
as  witnesses  and  reprehended   him   the  second  time ;  yet,  notwithstanding  the 

premises  and  the  repeated  admonitions,  the  said  continued  impenitent 

and  persists  in  improper  temper,  thereby  bringing  reproach  upon  the  Church. 

Charge  First — Improper  Temper. 

Specif  cation  First — For  that  the  said  heretofore,  to  wit,  on  the 

day  of  ,  A.  D.  18 — ,  at  and  within  the  station  (or  ciicuit)  afore- 


said, on  [three  several  occasions,  became  angry  and  displayed  improper  tem- 
per, accompanied  by  the  use  of  words  and  actions  unbecoming  a  Christian,  and 
in  violation  of  the  rules  of  the  Discipline. 

In  all  cases  where  preliminary  labor  is  required  by  the  Church, 
a  like  averment,  showing  that  the  requirement  of  the  Disci- 
pline has  been  complied  with,  should  precede  the  charges  and 
specifications. 

Forms  of  charges  and  specifications,  and  the  record  of  the 
proceedings  that  we  have  previously  given,  may  readily  be 
adapted  to  and  used  in  cases  of  mere  preliminary  examination. 
A  safe  rule  is  this  :  have  the  record  contain  a  full,  complete,  and 
perfect  history  of  the  trial,  and  the  forms  and  precedents  that 
we  have  given  will  serve  as  guides,  varied  to  suit  the  facts. 

FORMS    FOR   TAKING   AND   AUTHENTICATING   DEPOSITIONS. 

(No.  19.) 

Form  of  Notice. 

To . 

You  are  hereby  notified  that  I  have  been  appointed  by  the  presiding  elder 
of District,  within  the  district  where  the  witnesses  whose  testimony  is 


FORMS  AND  PRECEDENTS.  481 

desired  reside,  in  a  certain  cause  now  pending  before  the  Church,  wherein  cer- 
tain charges  and  specifications  have  been  preferred  by against  you,  and 

are  now  depending  for  trial  before Conference  (or  committee);  and  by 

virtue  of  such  appointment,  on  the day  of ,  A.  D.  18 — ,  at  

o'clock  A.  M.,  at  — {Here  name  the  place)  I  will  proceed  to  take  the  dep- 
ositions of  {Here  insert  the  names);  said  deposition  when  so  taken  to  be  read 
in  evidence  on  the  trial  (or  investigation)  of  said  charges  and  specifications; 
at  which  time  and  place  you  may  be  present  and  cross-examine  said  witness  if 
you  be  so  advised. 

(Signed) ,  Pastor. 

(Dated). 

In  pursuance  of  the  annexed  notice,  I,  H.  K,  Pastor  of  the  Methodist  Epis- 
copal Church  at  ,  appointed  by  the  presiding  elder  of  the  District  men- 
tioned in  said  notice  to  take  the  depositions  of ;  in  pursuance  of  said 

notice,  and  at  the  time  and  place  therein  mentioned,  I  proceeded  to  take  said 
depositions  upon  oral  interrogatories: 

appearing  as  counsel  for  the  prosecution,  and for  the  accused. 

Said  deposition  when  so  taken  to  be  read  in  evidence  in  behalf  of  the  prosecu- 
tion.      ,  of  lawful  age,  being  called,  testified  as  follows  in  answer  to  the 

following  interrogatory : 

Inter.  First:  What  is  your  name,  age,  occupation,  and  place  of  residence? 

Inter.  Second :  Are  you  acquainted  with ,  and  how  long  have  you 

known  him? 

At  the  conclusion  of  the  examination  in  chief,  the  following 

reqviest  should  be  made  : 

State  any  other  matter  or  thing  with  reference  to  the  matters  in  controversy 
within  your  own  personal  knowledge,  as  fully  as  though  you  were  specially  inter- 
rogated thereto. 

{Anstcers.) 

{Cross  interrogatories.) 

If  either  party  object  to  the  form  of  the  question  or  ques- 
tions, the  objection  should  be  briefly  noted  ;  otherwise  all  objec- 
tions as  to  form  will  be  considered  as  Avaived,  but  the  preacher 
taking  the  deposition  has  no  authority  to  decide  upon  the  objec- 
tion, but  should  note  it,  and  leave  it  to  the  pi-esiding  officer  be- 
fore whom  the  trial  or  investigation  has  taken  place  for  his 
decision. 

After  the  deposition  is  AA'ritten,  and  before  the  proceedings 
are  adjourned  and  the  parties  separate,  it  should  be  read  over 
to  the  witness,  and  signed  by  him. 


482  ECCLESIASTICAL  LAW. 


And  the  preacher  before  whom  the  same  was  taken  should 
append  his  certificate,  which  should  be  in  the  following  form : 

(No.  20.) 

I,  H.  K.,  before  whom  the  foregoing  deposition  was  t.iken,  do  hereby  certify 
that  the  same  was  duly  taken,  and  reduced  to  writing  by  me  at  the  time  and 
place  mentioned  in  the  caption  to  said  deposition,  and  was  then  carefully  read 
over  to  said  witness,  who  signed  the  same  in  my  presence. 

In  testimony  whereof  I  have  hereunto  set  my  hand  this day  of , 

A.  D.  18—.  (Signed) '-,  Pastor. 

The  deposition  should  then  be  sealed  up  by  the  person  taking 
the  same,  and  transmitted  to  the  presiding  officer  of  the  trial  •, 
and  should  remain  sealed  until  opened  by  proper  authority. 

The  deposition  should,  liowever,  be  opened  before  proceeding 
to  trial,  in  order  to  give  the  opposite  party  an  opportunity  to 
move  for  its  suppression. 

Where  a  sufficient  notice  has  not  been  "-iven  of  the  taking 
of  a  deposition,  if  the  opposite  party  did  not  attend  and  cross- 
examine,  it  is  a  good  ground  for  suppressing  the  deposition. 


INDEX. 


PAGE. 

Abraham,  Account  of, 434 

Absence  of  a  Bishop,    . 59 

Absence,  term  in  what  sense  used,     ........       60 

Accessory,  Principal  Competent  as  a  Witness  against,   ....  121 

Accomplices,  Competency  of,  as  Witnesses,        ......     120 

Accomplices,  who  are.   ..........  120 

Accomplice,  Uncorroborated  Testimony  of,  ought  to  receive  confirmation,  122 
Accomplice,  Testimony  of.  Courts  may  instruct  to  disregard  unless  Cor- 
roborated,  122 

Accomplice.  Credibility  of,  to  be  determined  by  the  Jury,      .         .         .  124 

Acquittal,  by  Presiding  Elders'  Committee,  effect  of,  ....       70 

Acquittal  of  a  Bishop,  effect  of,      .......         .  66 

Acquittal,  former,  effect  of, 93 

Acquittal,  Preliminary  Examination  no  bar,  .....  93 

Act  of  a  Party,  when  it  excludes  inquiry,  ......     260 

Administration,  Letters  of.  Evidence  of  Death  of  Testator  or  Intestate,  315 

Admissibility  of  Dying  Declarations  must  be  determined  by  the  Court,      .     162 
Admissibility  of  Evidence  a  question  for  the  Court,       ....  257 

Admissibility,  where  the  question  consists  of  both  Law  and  Fact,  by  whom 

decided, 257 

Admissihility  and  Effect  of  Foreign  Jiidgv^ents, 319 

Admissions,  made  by  former  Owner,  at  the  time  he  owned  the  Property,  156 

Admissions  made  by  former  Owner  before  Transfer,  .....  156 
Admissions  made  by  former  Owner  receivable,  though  the   Declarant  be 

living, 15" 

Admissions  and  Declarations  in  connection  with  acts  done   admissible  in 

Evidence, 215 

Admission  by  one  Partner  after  Dissolution,  of  a  Debt,  binds  the  other 

Partners, 219 

Admission  of  a  Party's  own  Books  of  Account, 220 

Admission,  Weight  of,        ...         .         ......     242 

Admissions  and  Declarations  may  be  used  against  actual  Parties,  though 

not  Nominal  Parties,  ......•••     301 

Affidavit,  ex  parte,  not  as  a  general  rule  admissible,      ....         375 

Affidavit  admissible  in  certain  Cases, 375 

Affirmative  Evidence  should  all  be  brought  forward  before  Plaintiflf  closes 

his  case,     ........••••     222 

483 


484  INDEX. 


PAGE. 

Affirmative,  gives  the  Party  holding  it  the  right  to  begin  and  close,       .  223 

Affirmative,  where  Damages  are  only  unliquidated, 224 

Affirmative,  in  Ecclesiastical  Tribunals, 224 

Affirmative,  exceptions  to  the  rule  that  Proof  is  upon  the  party  holding  it,    227 

Agent  or  Editor,  how  suspended, 58 

Agents,  declarations  of,  when  evidence,     .         .         .         .         .         .         .153 

Agents,  declarations  of,  when  part  of  the  7-es  gestce  are  admissible  in  Evi- 
dence,       ............     153 

Agents,  declarations  of,  bind  the  principal  when  part  of  the  res  gestce,  186 
Agents,  declarations  of,  with  reference  to  past  events  not  admissible,         .     186 
Agents,  declarations  of.  Evidence  against  the  Principal  when  he  has  author- 
ity to  make  them, 187 

Agent,  custom  or  usage  admissible  to  prove  his  authority,     .         .         .  188 

Agent,  no  authority  implied  to  bind  his  Principal  by  Warranty,         .         .190 
Agent,  no  authority  to  sell  on  credit,     .......  191 

Agent,  declarations  and  acts  of,  no  proof  of  agency,  .         .         .         .192 

Agent  can  not  enlarge  his  powers  by  his  declarations,  .         .         .         .  192 

Agent,  parties  dealing  with  to  take  notice  of  the  agent's  authority,   .         .193 
Ao^ent,  declarations  of,  when  part  of  the  res  gestae  admissible  in  favor  of 

the  agent  as  well  as  against  him,        .......     196 

Agent,  when  principal  liable,  for  the  acts  of,  criminally,         .         .         .         190 

Allegation  when  descriptive  of  identity, 244 

Allegation  that  a  note  bore  date  on  a  certain  day  must  be  literally  proved,  244 
Allegation  which  limits  that  which  is  essential,  is  descriptive,     .         .         .     245 
Allegation  of  Names,  Sums,  Dates,  Durations  must  be  precisely  proved,  2-15 

Alternative  Contract,  in  how  declared  upon,      ......     253 

Alteration,  burthen  of,  explanation  upon  the  Party  offering  written  Instru- 
ment in  Evidence,      ..........     348 

Alterations  and  Interlineations,  presumption  with  reference  to,     .         .  349 

Alterations,  presumption  with  reference  to,        .....         .     350 

Alterations  of  Negotiable  Paper, .         .  351 

Alterations,  material,  destroy  the  Instrument, 351 

Alterations  by  a  Stranger,  effect  of,        .         .         .         .         .         .         .  351 

Alterations  by  Stranger,  Presumption  with  Reference  to,  ...     352 

Amendments,  Liberality  in  allowance  of,      .         .         .         .         .         .  256 

Amendments,  whether  allowable  in  Church  Trials, 256 

Ancient  Possessions,     ..........         164 

Ancient  Documents, 164 


Ancient  Documents,  when  they  do  not  constitute  a  part  of  the  res  gestce,  164 

Ancient  Documents,  that  come  from  the  proper  Repositorj', 

Ancient  Transactions,  presumption  from  Possession  in  favor  of, 

Ancient  Boundaries,  traditional  Evidence  when  reooivable, 

Ancient  Boundaries  of  Parishes,  of  Towns  and  the  like. 

Ancillary  Proof,  when  necessary,       ....... 

Annual  Conference  has  Jurisdiction  to  hear  a  cause  without  referring  it  to 
Select  Number, 


INDEX.  485 


PAGE. 

Annual    Conference,    powers    over    Superannuated    and    Supernumerary 

Preachers, .')4 

Annual  Conference,  its  Appellate  Jurisdiction, ;">  t 

Ante  litem  motam,        ..........         172 

Appeal  will  not  lie  from  a  mere  interlocutory  finding,        ....       52 

Appeal  to  a  Judicial  Conference  not  allowable  until  the  Case  is  finally  dis- 
posed of  by  Annual  Conference,         .......       52 

Appeal  will  not  lie   to   the  Judicial  Conference,  where  the  Appellant  is  a 

Preacher  on  Trial,  or  a  Local  Preacher,     ......       52 

Appeals,  where  there  are  several,  may  be  taken  to  the  same  Judicial  Con- 
ference, when,     ...........       52 

Appeal,  when  and  how  taken,        .         .         .         .         .         .         .         .  410 

Appeal,  authority  of  the  Appellate  Court, 410 

Appeal,  when  prayed  for  and  allowed,  .         .         .         .         .         .         .  417 

Appeal,  the  only  mode  of  reviewing  a  Church  Trial,  .         .         .         .417 

Appearance,  waiver  of  notice,        ........  104 

Appellant,  duty  of, 417 

Appellate  Jurisdiction  of  the  General  Conference,         ....  51 

Appellate  Jurisdiction  of  the  General  Conference,  when  exclusive  and  when 

concurrent,      ...........  51 

Appellate  Tribunal,  where  the  Trial  is  de  novo,  Prosecution  hold  the  Affir- 
mative, ............  419 

Appellate  Tribunal,  sitting  for  the  revision  of  Errors,  Defendant  holds  the 

AfiBrmative, 419 

Appellate  Tribunal,  Presumptions  indulged  in,  with  reference  to  the  correct- 
ness of  Decisions  of  Subordinate  Tribunal,    .         .         .         .         .         419 

Appellate  Tribunal,  error  complained  of  must  be  prejudicial  to  the  Party 

complaining,  ...........  421 

Appellate  Tribunal,  generally  a  party  can  not  make  objection  in,  for  first 

time, 421 

Appellate  Tribunal,  error  complained  of  must  appear  on  the  face  of  the 

Record 422 

Appellate  Tribunal,  power  over  matters  of  discretion  in  Subordinate  Tri- 
bunal,     423 

Appellate  Tribunal,  what  matters  in  may  be  waived,         ....     423 

Appellate  Tribunal,  power  to  finally  dispose  of  the  case,        .         .         .         425 
Appellate  Tribunal,  should  affirm  where  substantial  Justice  has  been  done,  425 
Appellate  Tribunal,  duty  of,  where  improper  Evidence  has  been  admitted,  426 
Approvement,  what  was  at  common  Law,  ......     121 

Approvement,  a  species  of  Confession,  .         .         .         .         .         .  122 

Approvement,  could  only  be  allowed  in  capital  offenses,    .         .         .         .122 

Approver,  when  admitted  as  a  Witness, 121 

Apt  time,  .............     lOfi 

Arbitrators,  afiSdavits  of,  not  receivable  to  impeach  their  award,     .         .  147 

Arbitrators,  affidavits  of,  receivable  in  support  of  award,  .         .         .         .147 

Argument  should  be  carefully  restricted  to  facts  proved,        .        .         .         412 

32 


486  INDEX. 


PAGE. 

Aro-ument  should  not  be  unnecessarily  restricted,  so  as  to  exclude  illus- 
trations, ...........  412 

Argument  of  Lord  Bacon, 46fi 

Assio^nee,  suit  by  Assignor,  judgment  against  the  Maker,  Evidence  when,     303 

Attachment  for  Witness, 36Y 

Attachment  for  Witness  for  contempt, 367 

Attendance  of  Witnesses, 367 

Attorneys  at  law,  who  are,     .........  144 

Attorneys  at  law  must  regularly  be  admitted  before  Communications  to  them 

are  privileged,         ..........  144 

Attorney  and  Client,  burthen  of  proof  upon  attorney,        .         .         .         .     228 

Authority  of  a  Bishop  to  preside  in   a   District  Conference  where  a  Local 

Preacher  is  on  Trial,      .........  56 

Authority  of  a  Bishop  to  call  a  Committee  under  the  provisions  of  §  1,  ]f  203 

of  the  Discipline,  ..........  56 

Authority  of  a  Bishop  to  preside  in  a  Judicial  Conference,         ...       56 
Authority  of  a  Bishop  while  presiding  in  a  Judicial  Conference  to  decide 

questions  of  Law,        ..........       56 

Authority  of  a  Bishop  to  preside  over  a  Judicial  Conference  convened  for 

the  Trial  of  a  Bishop,         . 57 

Authority  of  a  Bishop  to  decide  questions  of  law  arising  upon  Trial  of  a 

Bishop,       ............       57 

Authority  of  a  Bishop  to  Preside  over  the  Book  Committee,  .         .  57 

Authority  of  Agent,  presumption  of,  .         .  ....     193 

Authentication  under  the  Constitution  of  the  United  States,  .         .  331 

Authentic  Record  of  the  Jews,  what  it  contains, 436 

Authentication  provided  by  the  Act  of'  Congress,  only  applies  to  courts  of 

General  Jurisdiction,  .........     331 

Authentication  of  Public  Documents  not  Judicial,         ....  337 

Autrefois  acquit,        ...........       92 

Autrefois  convict, 92 

Averment  in  complaint,  how  made,   ........       82 

Averment  and  Proof  not  variant  where  the  Evidence  is  in  Writing,        .  250 

Averment  of  knowledge  of  fact,  when  not  necessary  to  be  proved,     .         .     256 

Bastardy,  Married  Women  Competent  to  prove  criminal  intercourse,  128 

Best  Evidence  to  be  given, 231 

Best  Evidence  attainable  satisfies  the  Rule,  .....  231 

Best,  Evidence,  where  the  original  is  in  possession  of  the  opposite  party,  231 

Best  Evidence,  subscribing  witnesses,    . 232 

Bias  or  Prejudice,  effect  of, ,         .         .         .  407 

Bias  from  Legal  Interest,       .........  407 

Bible,  oldest  authentic  Record, 433 

Bible,  internal  Evidence  it  affords, 459 

Bible,  morality  of, 460 

Bill  in  Chancery,  recital  in,  when  Evidence  against  the  Party  filing  the 

same, 309 


INDEX.  487 


PAGE. 

Bishops,  ex  officio,  Presidents  of  the  General  Conference,     ...  48 
Bishops,  a  single  one  may  preside  over  the  General  Conference,         .         .       49 
Bishop,  while  presiding,  clothed  with  executive  administration  of  the  Con- 
ference,       .49 

Bishop,  power  of,  when  Presiding  over  Book  Committee,       ...  58 

Bishop,  right  to  Preside  in  General  Conference  while  that  body  is  exerci.s- 

ing  Judicial  Powers,       ...,...,,  58 

Bishop,  Trial  of, 62 

Bodily  or  Mental  feelings,  natural  expression  of,  admissible  in  Evidence,  203 
Book  Committee,  Judicial  powers  of.  .......       58 

Book  Committee,  how  convened  for  Trial  and  Investigation  before  them,     58 
Book  Committee,  power  to  remove  Agent  or  Editor,  .         .         .         ,       58 

Book  Committee,  investigation  before,  in  the  nature  of  Impeachment,  .  58 

Books  of  Account,  when  receivable  in  Evidence,        .....     153 

Book  Accoujit,  how  proved,  .........  220 

Book  Account,  ancillary  proof,  requisite  to  its  admissibility  in  Evidence,       221 
Book-sellers  and  Publishers,  when  criminally  liable  for  acts  of  servants  and 

Agents, 19(1 

Books  and  Records  of  a  Corporation,  private,  with  reference  to  Strangers,  337 
Books  of  History,  Science  and  Art,  when  Evidence,  .....     340 

Books  of  Living  Authors,  when  Evidence,     ......  340 

Burthen  of  proving  Ratification,        .         .         .         .         .         .         .         .218 

Burthen  of  Proof, 221 

Burthen  of  Proof  lies  upon  him  who  accuses,  ......     221 

Burthen  of  Proof,  upon  the  Party  who  asserts  the  affirmative  of  a  fact  221 

Burthen  of  Proof,  when  on  the  Defendant, 222 

Burthen  of  Proof  and  weight  of  Evidence,  distinction  between,     .         .  230 

Carelessness,  in  many  cases,  supplies  the  direct  Criminal  intent,      .         .       3(5 
Carelessness,  will  not  always  stand  in  the  room  of  positive  intent,  .  3G 

Central  Power,  necessity  of,       .         .         .         .         .         .         .         .         .18 

Certainty,  degrees  of,    .... 83 

Certainty  to  a  common  intent,  when  sufficient,  ......       83 

Certainty  to  a  common  intent,  sufficient  in  a  complaint,  ...  83 

Certainty,  degrees  of, 430 

Challenge,  peremptory,  when  allowed,    .......  105 

Challenge,  for  cause,         .         .         .         .         .         .         .         .         .         .105 

Challenge,  when  to  be  made,  ........  105 

Challenge,  not  to  be  made  after  Committee  is  empaneled,  .        .         .     lOli 

Charges  and  Specifications  against  an  Agent  or  Editor,  to  be  regularly  pre- 
pared, and  notice  given  by  the  Chairman  of  the  Book  Committee,  to 
the  Bishop,     ...........  58 

Charges  against  a  Bishop,  by  whom  prepared,  ......       65 

Charges  against  a  Bishop,  what  they  must  contain,        ....  66 

Charges  against  a  Traveling  Minister,        .......       67 

Charges  against  a  Presiding  Elder,        .......  68 

Charges  preferred,  before  they  are  authorized  to  Act,         ....       70 


488 


INDEX. 


PAOB. 

82 

.     102 

409 

.     113 

113 

.     444 

444 

.       20 

26 

Note,  115 

436 

Note, 


Charges  and  Specifications,  by  whom  prepared,     . 
Charges  and  Specifications,        ..... 
Charity,  foundation  for,  construction  of  motive,    . 
Children  when  Competent  to  give  Evidence, 
Children,  Competency  of,  how  determined,     . 

Christ,  publicity  of  Teaching, 

Christ,  Life  and  Miracles,  publicity  of. 

Christian  Ethics,  Evil  Mind,  effect  of,        .         .         . 

Christianity,  Moral  Power  in  the  State, 

Christianity,  presumption  of,  arising  from  Education, 

Chronicles,  Books  of,     .....         . 

Church,  definition  of, 

Church  and  Civil  Government,  distinct  and  separate,  and  yet  interwoven, 
Church  and  Civil  Government,  can  not  exist  one  without  the  other,  . 
Church  of  England,  King  its  Head  and  Supreme  Governor, 
Church  of  England,  subordinate  to  the  Civil  Government, 
Church  Tribunals,  power  of,  the  Civil  Courts,  over,        .... 
Church  Tribunals  may  be  restrained  when  exercising  a  usurped  Jurisdiction, 
Church  Tribunals  give  heed  to  the  moral  state  of  its  Members, 
Church,  questions  of  Faith  and  Practice,  subject  to  its  Jurisdictiou, 

Church  Trial,  how  regarded,  Criminal  and  Civil, 

Church  Trial,  when  of  a  Civil  Nature, 

Church  Trial,  carried  on  in  the  name  of  the  Church, 

Church  Trial,  amendments,  when  allowable. 

Church  Trial,  difference  between  Criminal  and  Civil 

Church  Member,  duty  of,  in  case  of  Crime, 

Circumstantial  Evidence,  strength  of,    . 

Citizen,  duty  of,  in  case  of  Treason  or  Felony, 

Civil  Government,  .......... 

Civil  Officers, Note, 

Civil  Process, Note, 

Civil  Jurisdiction,  distinction  between  Civil  and  Ecclesiastical,    .  Note, 

Civil  Tribunals 

Civil  tribunals,  how  they  view  the  Enormity  of  the  evil,  sought  to  be  rem- 
edied,    . 

Civil,  various  significations, Note, 

Clergymen,  Communication  to,  when  privileged, 

Clergymen,  Papal  Rome,  Confessions  to,  privileged. 

Clergymen,  Communications  to,  privileged  by  Statute,  in  many  of  the 

Clergymen,  Communications  to,  not  privileged  at  Common  Law, 

Cohabitation,  Evidence  of  Marriage, 

Collateral  Rights,  effect  of,  on  Disciplinary  Provision, 

Collateral  Provisions,  how  declared  upon, 

Collateral  Facts,  when  admissible  in  Evidence, 

Collateral  Facts, 

Commercial  Paper,  presumption  in  favor  of,     . 
Committee  of  Investigation, 


Cases 


12 
21 
21 
23 
23 
24 
24 
34 
26 
89 
90 
91 
91 
92 
90 
278 
89 
23 
20 
20 
20 
20 


21 

20 
144 
145 
States,  145 
145 
209 

14 
253 
258 
262 
291 

68 


INDEX.  489 


PAGE. 

Committee  appointed  by  Conference  to  take  Evidence,  .  .  .  .69 
Committee,  Presiding  Elders',  finding  of,  .....  ,  70 
Committee,  PresidinjT  Elders',  weight  of,  .  .  .  .  .70 
Committee,  right  of  the  Presiding  Officer  to  Instruct,  .  .  .  413 
Committee,  no  right  to  pass  upon  the  sufficiency  of  the  Charge  or  Specifi- 
cations,  414 

Committee,  Unanimous  Concurrence  not  required,    .....     414 

Committee  should  deliver  their  Verdict  to  the  Preacher  in  Charge,        .         415 
Common  Fame,  when  admissible  under  the  Roman  Law,  .         .         .171 

Common  Report,  limited  to  the  District  interested,         ....  171 

Communications,  between  Husband  and  Wife,  privileged,  .         .         .126 

Communications  made  to  the  President  of  the  United  States  or  the  Gov- 
ernors of  States  privileged,         .         .         .         .         .         .         .         .134 

Communications,  not  Official,  nor  made  in  the  discharge  of  Official  Duty, 

not  privileged,     .         .         .         .         .         .         .         .         .         .         .135 

Communications  by  a  Client  to  his  Attorney,  to  obtain  information  as  to  a 

Matter  of  Fact,  not  privileged.    ......  Note,  141 

Comparison  of  Handwriting  not  admissible,  ......  364 

Comparison  of  Handwriting  by  the  Jury,  when  allowed,    ....     365 

Comparison  of  Handwriting,  where  witness  had  previous  Knowledge  of,         365 
Complaint,  one  Specification  no  aid  to  another,  .....       '^S 

Complaint  should   State   Facts,  not  arguments,  inferences,  or  matters  of 

Law,  ............       85 

Compromise,  Declarations  and  Admissions  with  a  view  to,  not  admissible 

in  Evidence,       ...........     1-18 

Compromise,  Admissions  of  particular  Facts  made  with  a  view  to,  receiva- 
ble in  Evidence,  .........  Note,  149 

Condition  Precedent,  must  be  proved  as  alleged,  .         .         .         .         .  246 

Conference  Committee,  authority  to  try,     .......       70 

Conference  Committee  must  have  regular  charges  preferred,  before  they  are 

authorized  to  act, 70 

Confessions,  Inconsistent,  effect  of,         ......         .  260 

Confidential  Communications  between  Attorney  and  Client  not  receivable 

in  Evidence,  ...........  137 

Confidential  Communications  embrace  Papers,  Documents,  and  Letters  re- 
ceived in  a  professional  capacity,    .         .         .         .         .         .         .  137 

Confidential  Communications  between  Attorney  and  Client  not  confined  to 

Suits  pending,         ..........  138 

Confidential  Communications  between  Attorney  and  Client  not  privileged 

where  Attorney  is  not  applied  to  in  his  Professional  Character,     .  13f' 

Confidential  Comm\inications  do  not  extend  to  Stewards,  or  Agents,  or  to 
an  Attorney  where  the  Communication  is  not  within  the  object  of  the 

Retainer,  •     .         .         .139 

Confidential  Communications  made  with  a  view  to  the  Commencement  of 

the  Suit, Note,  141 

Conflict  between  Human  and  Divine  authority,  ....  12 

Conflict,  how  reconciled,    ..........       14 


490 


INDEX. 


PAGE. 

Conflict  of  Testimony,  actual  and  apparent,  .....         406 

Consent,  Party  giving  it,  need  not  be  called, 233 

Consent,  want  of,  may  be  proved  by  a  Third  Person,     ....         233 

Consequences,  of  a  Man's  Acts,  how  regarded  Civilly,        ....       18 

Consequences,  of  a  Man's  Acts,  how  regarded  Criminally,     ...  18 

Consideration  must  be  correctly  stated,     .......     253 

Conspiracy,  declarations  of  co-conspirators,  when  admissible,        .         .  217 

Conspiracy,  latitude  of  proof  allowed  in,  .......     258 

Conspiracies, 258 

Constitution,  recognition  of  Religious  Enjoyment,    .         •         .         .         .25 
Constitution,  no  Religious  Discrimination  under,  .....  25 

Contradictory  Affidavits  or  Depositions, 411 

Controversy,  how  defined,      . 172 

Conviction  for  the  Second  offense,  how  proved, 306 

Conviction  may  be  had  on  one  Specification  and  Acquittal  upon  another,      222 
Copies  of  Books  and  Records  of  Private  Corporations,  when  Evidence,   .       339 
Corpus  delicti,  Evidence  of,  ........         .  73 

Correspondence  between    an  Agent  of  the  Government  and  the  Depart- 
ments thereof  privileged,        ........  135 

Court,  duty  of,  to  determine  the  Law,        .         .         .         .         .         .         .109 

Credibility,  how  determined,  ........  408 

Credulity 430 

Crimes,  diversified,         ...........  31 

Crime,  new  Phases  of,       ..........       31 

Crimes,  how  regarded  by  the  Church,    .......  32 

Crime  can  only  be  committed  by  a  Mind  in  its  Normal  Condition,     .         .       33 
Crimen  falsi,  ground  of  Incompetency,  ......  119 

Criminal  intent  must  accompany  the  Act,  when,        .....       34 

Criminal  Tribunals  do  not  look  at  the  Enormity  of  the  Evil  except  as  one 

of  Governmental  Judgment,       ........       34 

Criminal,  the  same  Rule  applies  as  in  Civil,         .....  250 

Criminal  Pi-osecutions,  substance  of  the  Charge,  all  that  is  necessai'y  to  be 

proved, 250 

Criminal  Conversation,  deportment  of  Parties,  when  admissible,        .         .     204 
Cross-examination,  office  of,  ........  381 

Cross-examination,  Security  against  Falsehood,         .....     381 

Cross-examination,  great  Latitude  in, .381 

Cross-examination,  Caution  to  be  made  use  of,  .         .         .        •         .381 

Cross-examination,  how  Limited  and  Restricted, 382 

Cross-examination,  as  to  Facts  Collateral  and  Irrelevant,  .         .         .     382 

Cross-examination,  right  of  the  Opposite  Party  to  inspect  Papers,  used  upon,  385 

Deaf  and  Dumb,  competent  as  Witnesses,         .         .         .         .         .         .111 

Deceased  Surveyor,  Declarations  of,  with  reference  to  Boundaries,         .         ,1()9 
Dechiratory  part  of  the  Law,     .         .         .         .         .         .         .         .         .12 

Declarant  must  haye  adverse  interest  before  his  Declarations  are  receivable 

in  Evidence, 154 


INDEX.  491 

PAOK. 

Declarant,  want  of  Knowledge  in,         ......         .  172 

Declarant,  presumption  of  Knowledge  in, 185 

Declarations  against  flie  interest  of  the  Party  making  them,         .         .  150 

Declarations  with  reference  to  Ancient  Possession, 150 

Declarations  made  by  Deceased  Persons, 150 

Declarations  made  in  course  of  Official  Employment,         ....     150 

Declarations  with  reference  to  Private  Matters, 150 

Declarations,  when  part  of  the  res  g'esice,  admissible,         ....     150 

Declarations  when  offered  in  Evidence  carry  with  them  the  whole  statement,  150 
Declarations  of  Persons  in  possession,  explanatory  of  their  possession,     .     157 
Declarations  of  a  Debtor  who  continues  in  possession  of  Property,  admis- 
sible as  showing  Fraud,      .........     157 

Declarations  of  Agents,         .........  185 

Declarations  of  Servants  and  Neighbors  not  admissible  in  cases  of  Pedigree,  206 
Declarations  of  Deceased  Persons  with  reference  to  their  Relatives  living 

at  a  particular  place  admissible,  .......     208 

Declarations  and  Admissions  when  part  of  the  res  gestce,      .         .         .  214 

Declarations  of  Bailee  contemporaneous  with  the  loss,  admissible  in  his 

favor, 212 

Declaration  of  a  Wounded  Person  immediately  after  the  occurrence  held 

admissible  as  part  of  the  res  gres^CB, 212 

Declarations  of  Men  immediately  on  coming  out  of  a  House  of  Ill-fame, 

with  reference  to  the  character  of  the  House,  not  admissible,  .  212 

Declarations  of  Men  frequenting  a  House  of  Ill-fame  held  admissible  as 

showing  the  character  of  the  Visitors,    .         .         .         .         .         .  212 

Declarations  in  regai-d  to  Honesty  of  Witness,  when  admissible  as  part  of 

the  7-es  ffestce, 215 

Declarations  of  Persons  in  possession  of  Land,  when  admissible,       .         .     216 
Declarations  by  a  Party  after  he  has  parted  with  possession,  not  admissible,  216 
Declarations  of  one  co-trespasser,  where  several  are  jointly  sued,       .         .     217 
Declaration  of  Partners,    .         .         .         .         .         .         .         .         .         .217 

Decree  mav  be  the  foundation  of  an  action,  .....  308 

Decree  in  Chancery,  Evidence   for  the   purpose  of  showing   Character  of 

possession,      ...........         309 

Deeds  and  other  Specialties,  how  declared  upon,        .....     255 

Dedimus  po^es/ffl/em,  depositions  upon,  ....'..         371 

Defect  of  Religious  Belief,  ground  of  discrediting  Witness,       .         .         .117 

Defendants,  right  to  make  statement, 106 

Defendants,  right  to  open  and  close  case,  when, 106 

Definition  of  Law, 11 

Delegated  power,  when  exercisable, 63 

Deliberate  publication  of  Libel,     ........  287 

Depositions,  not  receivable   on   Trial  of   an  indictment  for  Treason   and 

Felony, 369 

Depositions,  how  taken  upon  a  Church  Trial,    ......     370 

Depositions,  notice  of  the  taking  thereof  required,         ....         371 

Depositions,  when  taken  may  be  used  by  either  party,      ....     372 


492  INDEX. 


PAGE. 

Depositions,  by  whom  reduced  to  Writing, 372 

Depositions,  what  must  appear  upon  the  face  of, 372 

Depositions,  formal  objections  to,  when  to  be  made,  ....  373 
Depositions,  what  is  a  reasonable  notice  of  the  taking  of,  ...  373 
Depositions,  waiver  of  Notice  by  appearance  and  cross-examination,  .  374 
Depositions,  may  be  taken  on  Written  interrogatories,  by  agreement,  .  374 
Deposition  may  be  read  where  Witness  is  in  Court,  ....  375 
Depositions,  taken  in  a  Civil  Suit,  may  be  read  on  Church  Trial,  .  .  376 
Depositions  taken  in  another  Suit  may  be  read,  where  there  was  full  oppor- 
tunity of  cross-examination,    . 376 

Depositions  may  be  read  in  Case  of  pedigree,  custom  or  prescription,     .  377 

Depositions  taken  by  authority  of  Ecclesiastical  Court  can  not  be  read  in  a 

Civil  Suit, 377 

Different  parts  of  the  Law, 12 

Different  Judicial  Departments  of  the  Church,  ....  98 

Direct  Evidence,  when  necessary, .74 

Directory  part  of  the  Law, 12 

Disciplinary  Rule,  how  construed, 13 

Disciplinary  Rules,  when  to  be  construed,  in  pari  materia,   .        .        .  13 

Discipline,  necessity  of, 26 

Discipline,  right  of  the  Church  to  enforce, 26 

Discrepancies,  shght,  effect  of, 443 

Dishonesty,  how  dealt  with, 80 

Distinction  between  the  Law  of  Revelation  and  Nature,     ....       12 
District   Conference,  Judicial   powers    of,  limited   to   the  Trial  of   Local 

Preachers,      ...........  54 

District  Conference,  how  created, 55 

District  Conference,  its  powers,  how  limited, 55 

Divine  and  Human  Law,  when  in  conflict, 27 

Doctrines,  contrary  to  the  Doctrines  of  the    Church,  when   disseminated, 

how  dealt  with, 69 

Dying  Declarations,      ..........  157 

Dying  Declarations,  exception  to  the  Rule  rejecting  hearsay  Evidence,      .     157 

Dying  Declarations  must  be  made  in  extremis, 158 

Dying  Declarations,  when  part  of  the  res  gestce, 158 

Dying  Declarations  must  be  made  under  the  apprehension  of  death,      .         159 
Dying  Declarations  excluded  when  the  Witness  if  living  would  be  incom- 
petent,         160 

Dying  Declarations  not  Evidence  except  in  cases  of  Homicide,     .       Note,  158 

Dying  Declarations  must  be  confined  to  Facts, 161 

Dying  Declarations  when  reduced  to  writing,  the  writing  must  be  produced,  161 

Ecclesiastical  Tribunals  aim  to  supply  the  deficiency  of  Civil  Oovern- 

ment, •         .         .        .  21 

Ecclesiastical  Tribunals  aim  to  give  heed  to  the  Spiritual  State  of  her  Mem- 
bers,        21 


I 


INDEX.  493 


Page. 
Ecclesiastical  Matters  are  determinable  in  England  by  Ecclesiastical  Tri- 
bunals, without  reference  to  Church  Membership,  ...  37 
Ecclesiastical  Tribunals,  who  can  act  as  Counsel  in,           ....     144 

Ecclesiastical  Tribunals,  Advisers  in,  enjoy  the  same  privileges  as  Attorneys,  144 
Ecclesiastical  Tribunals,  their  sentence  how  far  Evidence,  .         .         .     309 

Ecclesiastical  Jurisdiction  over  pecuniary  causes  in  England,  .  38 

Ecclesiastical  Jurisdiction  over  Matrimonial  causes  in  England,         .         .       38 
Ecclesiastical  Jurisdiction  over  Testamentary  causes  in  England,  .  38 

Ecclesiastical  Jurisdiction  in  the  Methodist  Episcopal  Church,  .         .         .41 
Eccelsiastical  Trial,  Criminal  in  Character,    ......  89 

Ecclesiastical  Courts,  power  to  bind  Temporary  Courts,  when,  .         .         .     310 
Ecclesiastical  Courts,  sentence  when  impeachable,         ....         318 

Ecclesiastical  Canons,  inquiry  into,    ........     340 

Elder,  investigation  of  accusation  against,      ......  61 

Electoral  Conference,  held  when,       ........       45 

Entries,  of  Receipts,  of  Payment,  in  Private  Books,  receivable  in  Evidence,  156 
Entries  of  Ecclesiastical  Dues,  .........     156 

Entries  of  Receipts,  of  Rent,  when  Evidence, 156 

Essential  Descriptive  Averment,  what  is,   .         .         .         .         .         .         •     244 

Esto{)pel  by  Limitation,  .........  96 

Estoppel, 294 

Estoppel,  by  Verbal  Acts, 296 

Estoppel,  against  an  Equitable  Assignee, 303 

Evangelists,  number  of,  .........         442 

Evangelists,  statements  of,  corroborated  one  by  the  other,  .         .         .     442 

Evidence  against  a  Bishop  need  not  be  reduced  to  writing,    ...  66 

Evidence  in  Ecclesiastical  Courts,  weight  of,      .         .         .         .         .         .68 

Evidence,  number  of  Witnesses, 71 

Evidence,  direct, 71 

Evidence,  circumstantial,       .........  71 

Evidence, 108 

Evidence,  object.  Attainment  of  Truth, 108 

Evidence,  two  kinds, 108 

Evidence,  parol, 108 

Evidence,  written,      ...........     108 

Evidence,  if  relevant,  admissible,  .......         258 

Evidence  of  other  acts,  when  admissible,  .         .         .         .         .         .         .     264 

Evidence  of  general  character,      ........         266 

Evidence  of  general  character  in  England,  limited  to  Criminal  Cases,       .     266 
Evidence  of  general  character  in  case  of  Criminal  Conversation,  Seduction, 

and  Breach  of  Promise  of  Marriage,  ......     267 

Evidence  of  general  character  in  actions  of  Tort,  charging  gross  depravity, 

is  admissible,      .         .         .         .         .         .         .         .         .         .         .     267 

Evidence  of  good  character  admissible  in  Criminal  Cases,     .         .         .  268 

Evidence  in  Criminal  Cases  of  bad  Character  not  receivable  until  Defend- 
ant has  attempted  to  support  his  Character,    .....         268 

Evidence  of  general  character  ought  to  bear  upon  the  nature  of  the  charge,  269 


494  INDEX. 


PAGE. 

Evidence  can  not  be  given  of  matters  not  in  issue,       ....  270 
Evidence  must  be  taken  anew,  upon  the  ground  of  a  new  trial,  except  dep- 
ositions, etc., 427 

Evidentia  rei, 283 

Evil  intent,  judged  of  by  the  act, 37 

Examination  of  Books  and  Accounts,  proof  of  by  Witness,  who  made  the 

same,      ............  238 

Examination  of  Witnesses, .         .  378 

Examination  of  Witnesses  in  a  Church  Investigation,  ....  378 

Examination  of  Witnesses,  fixed  by  but  few  positive  Rules,       .         .         .  378 

Examination  of  Witnesses,  direct,  to  be  conducted  by  the  Party  calling  him,  378 

Examination  in  chief  and  cross-examination,  conducted  orally,         .         .  378 

Examination,  leading  questions  when  allowed,       .....  379 
Examination,  when  questions  assume  facts  to  have  been  proved  which  have 

not  been  proved,  objectionable, 379 

Examination  ordinarily  confined  to  Matters  of  Fact,           ....  379 

Examination,  opinion  of  Witness  as  Expert,  when  allowed,   .         .         .  379 

Examiner,  duty  of,  with  reference  to  fairness,    ......  381 

Examiner,  duty  of,  where  Witness  is  testifying  recklessly,     .         .         .  381 

Exclusion  of  Evidence,  basis  of,        .......         .  110 

Exclusion  oj" Evidence,  based  upon  Public  Policy         ....  133 

Exclusion  of  Evidence,   applies   to    confidential   Communications  between 

Husband  and  Wife, 133 

Exclusion  of  Evidence  based  upon  secret  award  of  State,          .         .         .133 
Exclusion  of  Evidence  of  Attorneys,  Clerks,  Clergymen,  and  Medical  per- 
sons,             133 

Excommunication  by  an  Ecclesiastical  Court,        .         .         .         .         .  212 

Execution  of  Written  Instrument,  proof  of,  by  Confession  of  the  Party,     .  241 

Execution  of  Wills,  Sentence  of  Court  of  Probate,  prima  facie  Evidence,  315 

Execution  of  Instrument,  proof  of,  when  sufficient,  .....  359 

Exemplary  Damages,  when  allowed, Note,  19 

Exemplar,  style  of  another, 455 

Existing  state  of  nature,        .........  17 

Ex  post  facto  Law, Note,  47 

.Ex  pos^yacto  rule  applicable  to  the  Church, 62 

Express  repeal  of  prior  Law,  efi"ect  of,       . 13 

Extra  Judicial  remedy,  when  allowed,    .......  16 

Failure  in  Business,  how  inquired  into, .69 

Faith,  Difference  between  Faith  and  Evidence, 429 

Family  Bible,  entries  in,  when  Evidence, 152 

Family  relation,  declarations  by,  in  case  of  Pedigree,   .         .         .         .         173 
Family  recognition,  Evidence  in  a  case  of  Pedigree,  ....     207 

Foreign  Judgment  as  to  proceeding  in  rem, 319 

Foreign  Judgments,  how  far  conclusive, 319 

Foreign  Judgments  only  prima  facie  evidence,  where  the  proceedings  are  in 
personam,  .  320 


INDEX. 


495 


PAGE. 

Foreio^n  Sentences,  effect  of,  on  the  capacity  or  status  of  Persons,         .  323 
Forgery,  incompetency,  by  reason  of  the  conviction  of,     .         .         .         .119 

Forgery  of  a  Will,  how  contested,          .         .         .         .         .         .         .  317 

Form  of  stating  facts  in  Complaint,  ........  83 

Forms  for  tlie  Trial  of  a  Bishop,    ........  4C9 

Forms  for  the  Trial  of  Traveling  Ministers, 472 

Forms  of  Certificates  of  Secretaries, 477 

Forms  against  Preacher  on  Ti-ial,      ........  479 

Forms  fur  the  talcing  and  authentication  of  Depositions,      .        .        .  480 

Freedom  of  Religious  profession,  guarantee  of,          .....  25 


General  Conference,  how  composed, 44 

General  Conference,  meeting  of,        ........  45 

General  Conference,  quorum  of,  for  the  Transaction  of  Business,  .         .  45 
General  Conference,  Ministerial  and  Lay  Delegates,  how  sit  and  deliberate,  45 

Genei-al  Conference,  presided  over,  by  whom,        .....  45 

General  Conference,  powers  of,  how  limited,      ......  45 

General  Conference,  Supreme  Judicial  Body  of  the  Church,           .         .  49 

General  Conference,  jurisdiction  in  the  Trial  of  accused  Bishops,       .         .  49 
General  Conference,  Appellate   Jurisdiction  over   the   Trial  of  Traveling 

Preachers,           ...........  49 

General  Conference,  may  refer  Trial  to  Committee,       ....  49 

General.  Conference,  original  Jurisdiction,          ......  49 

General  Conference,  Trial  of  Bishop  before,           .....  62 

General  Superintendent's  power  to  call  extra  Session,        ....  45 

General  Reputation,  Evidence  of  Marriage,   ......  209 

General  Reputation,  not  admissible  to  rebut  the  presumption  of  actual  Mar- 
riage arising  from  cohabitation,      .         .         .         .         .         .         .  210 

Genuineness  of  the  Bible,  proof  of  by  coming  from  the  proper  repository,  1G5 

Genuineness  of  Written  Instruments,  question  of,  by  whom  decided,     .  257 

Genuineness  of  Signature,  proof  of,  when  sufficient,          ....  364 

Genuineness  of  the  Scriptures,  Evidence  of,  from  the  Laws  of  Nature,  458 

Good  Character,  how  considered,        ........  72 

Good  Character,  when  admissible,          .......  72 

Government,  recognition  of  the  Church,  by,       ......  22 

Government,  combination  between,  and  the  Church,  effect  of,        .         .  22 

Governmental  power  of  the  Church,  where  vested,    .....  44 

Grand  Jury,  Proceedings  of,  to  what  extent  regarded  as  privileged,       .  135 

Grand  Jury,  Secrets  of,  defined  by  Oath  of  Office, 136 

Grand  Jury,  not  permitted  to  state  how  Members  voted,      .         .         .  136 
Grand  Juror,  competent  to  prove  that  a  Witness  was  not  before  them  at  the 

finding  of  an  Indictment,       ........  136 

Habitual  Drunkard,  not  incompetent  when  sober,    .....  113 

Hearsay  and  Reputation,  when  admissible,    ......  152 

Hearsay  Evidence  in  matters  of  General  Interest,     .         .         .         .         .171 

Hearsay,  in  cases  of  prescriptive  right,  in  qiiasi  public  matters,    .         .  173 


496  INDEX. 


PAGE. 

Hearsay  Evidence  includes  Documentary  as  well  as  Oral  Declarations,      .     174 

Hearsay  Evidence^ 200 

Hearsay  Evidence  in  its  nature  inadmissible,     ......     200 

Hearsay  Evidence,  presumption  that  there  is  better  Evidence,       .         .         200 

Hearsay  Evidence,  its  intrinsic  weakness, 200 

Hearsay  Evidence,  exception  to  the  rule  of  exclusion,  .         .         .         .  201 

Hearsay  includes  Written,  as  well  as  Oral  Declarations,    .         .         ,         .201 
Hearsay,  difficulty  of  distinguishing  between  it  and  Original  Evidence,  201 

Heathen  Mythologies,  what  they  recognize, 433 

Herod's  dominions, 450 

Hierarchy, 314 

History,  how  received,  . 441 

Historical  Characters,  reference  to  in  the  Scriptures,  ....     449 

Holder  of  a  Promissory  Note  when  stolen,  burthen  of  proof  on  Plaintiff,      229 

Human  Law,  its  efficacy, 30 

Human  Law,  the  obligation  imposed  upon  the  Christian  to  obey  it,       .  31 

Husband  and  Wife, 124 

Husband  incompetent  as  a  Witness  against  the  Wife,    .         .         .         .  124 

Husband  and  Wife,  ground  of  exclusion,  when  offered  as  a  Witness,  .     124 

Husband  and  Wife,  incompetency  of,  based  upon  Public  Policy,    .         .  125 

Husband  and  Wife,  one  can  not  be  asked  a  question  which  would  criminate 

the  other, Note,  126 

Husband  and  Wife  competent  in  cases  of  violence,  ....  Note,  126 

Husband  and  Wife,  mode  of  proof  of  Marriage, 131 

Husband  and  Wife,  proof  of  Marriage  by  General  Reputation,  .         .     131 

Husband  and  Wife,  declarations  of,  when  indicated  for  a  joint  offense  re- 
ceivable as  though  the  relationship  did  not  exist,    .         .         .         .  132 
Husband  and  Wife,  declarations  of,  admissible  when  they  constitute  a  part 

oi  i\iQ  res  gestce, 132 

Idiots,  Imbeciles,  and  Lunatics,  how  regarded  by  the  Church,  ...  32 

Idiots,  Imbeciles,  and  Lunatics,  rights  of,  when  in  the  Church,       .         .  32 

Ignorance,  how  far  an  Excuse, 34 

Ignorance,  two  kinds, 34 

Ignorance  of  Law,    ...........  34 

Ignorance  of  Fact,        ..........  34 

Ignorantia  juris  nan  excusat,   .         .         .         ,         .         .        .         .         .34 

Ignoraniia  facti  excusat,               ........  35 

Imbecility,  how  treated  in  Criminal  Investigations,    .....  32 

Immaterial  Facts  stated  by  a  Witness  not  the  subject  of  cross-examination 

or  contradiction,         ..........  262 

Immoral  conduct  of  Bishop,  how  Dealt  with, 63 

Immorality  of  Man,  how  provable,     . 462 

Impeaching  power  of  the  Government  of  the  United  States,  how  limited,  99 

Impeachment  of  William  Blunt 100 

Impeachment  of  Belknap,  Secretary  of  War, 100 

Impeachment  of  Witnesses, 390 


INDEX. 


497 


PAOB. 

390 
390 
390 


391 


391 
392 
392 
393 
394 


Impeachment  by  proof  of  General  Reputation, 

Impeachment  by  making  inconsistent  statements,      ..... 

Impeachment  wlien  a  party  is  allowed  to  discredit  his  own  Witness, 
Impeachment,  a  Party  calling  a  Witness  may  contradict  his  Evidence  by 
other  Testimony,    .......... 

Impeachment,  when  a  Party  calling  a  Witness  may  show  he  has  made  state- 
ments out  of  Court  inconsistent  with  his 'J'estimony,  and  that  he  has 
been  deceived,    ........... 

Impeachment,  mode  of,  by  proof  of  General  Character, 

Impeachment,  limited  to  General  Character  for  Truth,      .... 

Impeachment,  Particular  Facts  can  not  be  inquired  into, 

Impeachment,  mode  of  Examination  of.  Witness  called  to,        .         .         . 

Impeachment,  wliether  Witness  can  be  asked  if  he  would  believe  him  under 

oath,  doubted, 394 

Impeachment,  in  Church  Trial  where  Witness  is  a  Member  of  the  Church,  395 

Imjieachment,  cross-e.x-amination  of  Impeaching  Witness,         .         .         .     395 

Impeachment,  right  of  a  Party  to  sustain  his  Witness  by  fresh  Evidence,      396 

Impeachment,  by  Evidence  of  Contradictory  Stat(?ments,  .... 

Impeachment,  by  Evidence  Contradictory  Statements,  foundation  laid  by 
calling  attention  to  Time,  Place,  and  Person,         .... 

Impeachment,  by  proof  of  Contradictory  Statements,  whether  the  Party  can 
corroborate  by  proof  of  General  Character,     ..... 

Impeachment,  form  of  question  in,    ......         . 

Impeachment,  where  the  Witness  says  he  does  not  Remember, 

Impeachment,  not  allowable  to  inquire  into  Contents  of  Writing  for, 

Implied  Repeal  of  Disciplinary  Rule,      .... 

Implied  undertaking  on  the  part  of  Members,    . 

Improper  Temper,  how  dealt  with,         .... 

Incompetency  of  Witnesses,      ..... 

Incompetency,  by  whom  determined,      .... 

Incompetency,  judged  of  by  the  Presiding  Officer,     . 

Incompetency  arising  from  defect  of  Understanding,    . 

Incompetency,  proof  of,  by  Declaration  of  Witness,  . 

Incompetency,  Restoration  of,  how  proved,    . 

Incompetency  from  Conviction  of  Crime,    ... 

Incompetency,  not  regarded  as  a  part  of  the  Punishment, 

Incompetency,  Relaxation  of  the  Rule,     . 

Incompetency,  founded  upon  a  Mistaken  Idea, 

Indictment,  Contract  set  out  in,  must  be  Proved  as  Laid, 

Indictment  for  Murder,  Defendant  under,  may  be  Convicted  of  Manslaughter,  250 

Indictment  for  Grand  Larceny,  Defendant  under,  may  be  found  Guilty  of 

Petit  Larceny, 250 

Indictment  for  Felony,  Defendant  under,  can  not  be  Convicted  of  a  Mis- 
demeanor,          .  251 

Indictment  for  Perjury,  Term  of  Court  must  be  correctly  Stated  and  Strictly 

Proved,  ." 251 

Inducement,  statement  of,  proof  in  support  of,  .         .         .         .         .     254 


397 

397 

399 
399 
399 
401 
13 
42 
80 
109 
109 
109 
111 
117 
118 
118 
118 
119 
408 
250 


498  INDEX. 


PAGE. 

Inefficiency,  Trial  of  Bishop  for, 67 

In  extremis,  how  proved,    ....                 160 

In  Jama  juris, 118 

In  fama  facta,  . 118 

7)1  yaTHrtJju'is,  Legal  Ground  of  Exclusion, 118 

Inferior  Jurisdictions,  Powers  Limited,  must  be  specifically  set  forth,         .  314 

Infidel,  incompetent  in  consequence  of,         ......  114 

Insanity,  presumption  of,  with  reference  to  Continuance,  .         .         .         .111 

Insanity,  burthen  of  Proof  of,        .         .         .         .         .         .         .         .  Ill 

Insanity,  burthen  of  Proof  of.  Lucid  Interval,  ......  Ill 

Insanity,  Letters  and  Conversations  addressed  to,  when  admissible,      .  201 

Inscri[)tions  on  Walls,  Gravestones,  etc.,  how  proved,         ....  239 

Inspection  of  Books  and  Papers,  granted  in  furtherance  of  Civil  Rights,  337 

Inspection  not  allowed  in  Criminal  Cases,          ......  337 

Inspection  not  allowed  in  qui  tarn-  Actions,    ......  337 

Inspection  of  Writings,  produced  on  notice,  effect  of,         ...         .  347 

Instruments,  filling- Blanks  by  a  Third  Party,          .....  352 

Instruments,  filling  Blanks  contrary  to  the  intention  of  the  Parties,  effect  of,  354 

Instruments  under  Seal,  right  of  Third  Parties  to  fill  Blanks,         .         .  353 

Intended  Fesult, 36 

Intended  Result  of  a  Party's  act,  how  regarded,      .....  36 

Intended  Results  where  the  Motive  is  good,         ......  36 

Intended  Results  where  the  Motive  is  ill,  but  the  act  Results  in  Good,  .  36 

Intent,  Declarations  of,  when  admissible,  .......  215 

Intent,  proof  of,  by  the  Kstablishment  of  other  Acts  of  like  Character,  203 
Intent,  in  Slander  and   Libel,  proof  of  other  words  or  other  Writings  ad- 
missible,        ...........  263 

Interest  when  at  variance  with  Entries  and  Declarations,  receivable  in  Evi- 
dence,   153 

Intermediate  Proceedings,  presumptions  in  favor  of,           ....  292 

Intoxication,  ground  of  exclusion  during  its  Continuance,    .         .         .  112 

Intoxication,  state  of,  how  determined, 112 

Irregularities  in  the  Appellate  Court,  where  the  Trial  is  de  novo,  .        .  418 
Irrelevant  Questions,  not  admissible  to  a  Witness,  for  the  purpose  of  laying 

the  foundation  for  his  Conviction, 262 

Issue  defined,     ............  243 

Issue  is  either  Law  or  Fact, 243 

Issue,  substance  of,"  when  sufficient, 243 

Jeopardy,  Second  Time  for  the  same  Offense,  when,     .         .        •        .  f4 

Jesus, Christ,  a  mere  Man,  improbability  of  Miracles,         ....  465 

Jews,  Conspiracy  against  Christ,  ........  445 

Jewish  Church,  relation  to  the  Civil  Government, 437 

Jewish  Church  alarmed  at  his  Ministry, 445 

Journals  of  the  Legislature,       .........  339 

.Journals  of  the  Church,  how  proved,     .......  339 

Judgment  as  Muniments  of  Title,  when  admissible 298 


INDEX. 


499 


Judgment,  admissible  to  show  Cause  Determined, 

Judgment,  evidence  between  Parties  and  Privies,      .         .         .         . 

Judgment,  conclusive,  effect  of,     ......         . 

Judgment  against  Sheriff,  prima  facie  evidence  against  his  Security, 

Judgments  and  Decrees  when  admissible  against  Strangers, . 

Judgment  of  a  State  Court  not  a  Foreign  Judgment, 

Judicial  Powers  of  the  General  Conference,  distinguishable  from  its 
lative  Powers,     ........ 

Judicial  Conference,        ........ 

Judicial  Conference,  how  composed,  ..... 

J^idicial  Conference,  Appellate  Jurisdiction  of,      . 

Judicial  Conference,  by  whom  to  be  called  together, 

Judicial  Conference,  by  whom  to  be  presided  over. 

Judicial  Conference,  who  to  fix  the  Time  and  Place  of  its  Session 

Judicial  Conference,  have  no  Original  Jurisdiction, 

Judicial  Conference,  power  limited,  Special  and  Appellate, 
Judicial  Conference,  for  Trial  of  Bishop,       .... 
Judicial  Conference,  by  whom  Convened  for  Trial  of  Bishop, 

Judicial  powers  of  an  Ainw  a!  Con  fey  ence,    .... 
Judicial  powers  of  an  Annual  Conference  exercised  by  Committee 
Judicial  powers  of  a  District  Conference,     .... 
Judicial  powers  of  a  Presiding  Elder,         .... 

Judicial  powers  of  Minister  in  Charge, 

Jurisdiction,  definition  of,  ...... 

Jurisdiction,  Territorial  Limits  of,  ..... 

Jurisdiction,  Original, 

Jurisdiction,  Appellate, 

Jurisdiction,  concurrent.  Exclusive  or  Assistant, 

Jurisdiction  over  the  Subject  Matter, 

Jurisdiction  over  the  Person, 

Jurisdiction,  Courts  of  Inferior,  must  act  within,  . 
Jurisdiction,  amenable  to,  ....... 

Jurisdiction  not  made  out  by  inferences,         .... 

Jurisdiction,  presumptions  in  favor  of,        ....         . 

Jurisdiction,  special  presumptions  against,     .... 

Juror,  Affidavit  of,  not  receivable  to  Impeach  the  Verdict, 

Juror,  Affidavit  of,  receivable  to  Support  a  Verdict, 

Jury,  province  to  decide  the  Facts, 


KxowLEDGE  of  Witness  essential  to  enable  him  to  Testify, 


Law,  Administration  of, 

Lay  Delegates  to  the  General  Conference,     .... 

Lay  Delegates,  how  chosen, 

Leading  Questions,  when  allowable  in  a  Direct  Examination, 

Leading  Questions  allowable  on  Cross-examination, 

Legal  Infamy,  how  proved, 


PAGE. 

299 
299 
302 
.S07 
321 


Legi 


AS 
51 
51 
51 
51 
51 
51 
52 
52 
64 
65 
53 
53 
54 
59 
61 

Note,     49 
50 
50 
50 
50 
50 
50 
50 
75 
76 
291 
293 
147 
147 
109 


Note, 


397 

428 
44 
44 
380 
380 
119 


500  INDEX. 


PAGE. 

Legal  Infamy,  only  provable  by  the  Record  of  Conviction,        .         .         .119 
Legal  Memory,  length  of  Time,     .         .         .         .         .         .         .         .  171 

Legal  Evidence  of  the  Anthenticiti/  of  the  Scriptures,        ....     421) 

Legislative  power  of  the  General  Conference,         .....  47 

Liability  of  a  Minister  to  be  Tried  for  an  Offense  committed  while  a  Lay- 
man, and  before  whom,  .........  98 

Libel  and  Written  Instruments,  descriptive  of  every  Part,         .         .         .     235 
Libelous    Painting,    Declarations    of   Spectators    in    Exhibition-room    ad- 
missible,          .     202 

License,  proof  of,  to  be  made  by  Defendant, 228 

License,  allegation  of,  not  Supported  by  proof  of  a  Lease,        .         .         .     2.39 

Limitation  on  Prosecutions, 96 

Limitations  on  Church  Trial,  no  bar,  .         ,         .  .     '     .         .         .        9(! 

Limitation,  Rule  in  Equity,  .........  97 

Limitation,  Public  Policy  of, .       97 

Limitation  ngainst  Preachers  not  restricted  to  the  Time  they  have  been  in 

the  Ministry, 98 

Lis  pendens,  ...........  .371 

Local  Preachers,  Trial  of, 79 

Local  Preacher,  what  will  Quarterly  or  District  Conference,  Jurisdiction  over,     79 
Lost  Instruments,  proof  of  to  the  Court,  .......     .342 

Lost  Instruments,  search  for,         .         .         .         .         .         .         ,         .  344 

Lost  Instruments,  supposed  to  be  of  no  value,  slight  search  sufBcient,       .     344 
Lost  Instruments,  custody  of,  Custodian  must  be  called,        .         .         .  344 

Lost  Instruments,  proof  of  Execution  required,         .....     344 

Lost  Instruments,  proof  of  Execution,  by  attesting  Witness,  .         .  345 

Lunatic,  incompetent  during  Lunacy,        .         .         .         .         .         .         .111 

Malicious  Prosecution,  probable  cause,  proof  of  to  be  made  by  Plaintiff,  227 
Malicious  Prosecution,  how  far  Evidence  of  General  Character  is  admissible,  200 

Malum  prohihitum,  necessity  of, 30 

Man,  incapable  of  living  in  a  State  of  Nature,. -30 

Man's  Accountability,  foundation  of, 33 

Man,  a  Worshiper,     . 434 

Mandamus  to  compel  Inspection  of  Public  Documents,  .         .         .  335 

Marriage,  exclusion  of  Wife  as  a  Witness  is  only  in  case  of  Lawful  Marriage,  131 
Marriage,  proof  of,  by  Examination  of  Wife,  on  her  voir  dire,  .         .131 

Marriage,  Wife  competent,  when  forcibly  abducted  and  Married,  .         .  131 

Marriage,  Wife  competent  against  the  Husband   on   Indictment  for  Rape 

upon  her  own  person,     .........  131 

Marriage,  Wife  a  competent  Witness  in  all  cases  of  alleged  Personal  Injury,  132 
Marriage,  when  not  Lawful,  Husband  and  Wife  competent  as  Witnesses,  132 
Marriage,  Third  Person  not  permitted  to  introduce  Evidence  to  establish 

the  Illegality  of, 132 

Marriage,  Jactitation  of, 311 

Marriage  Legality  of,  to  be  determined  by  Law  of  Place,  where  celebrated,  324 
Marriage,  Incest  and  Polygamy  invalid,     .......     325 


INDEX.  501 


PAGE. 

Marriage,  conflict  between  English  and  Scottish  Covirts,         .         .         .  327 

Marriage  in  one  State  may  be  annulled  by  Divorce  in  another,  .         .         .  329 

Marriage,  effect  of,  ex  parte,  decree  of  Divorce,    .....  330 

Mathematical  certainty,     ..........  430 

Matrimonial  status, 330 

Matters  of  Puhlic  Interest, 150 

Matters  of  Public  Interest  may  be  clas.sed  under  four  General  Heads,  .  150 

Matters  of  Puhlic  and  General  Interest, 170 

Maxim  of  Pleading,  Pleading  most  strongly  taken  against  Party  Pleading,  84 

Medical  Profession,  Confidential  Communications  to,  not  privileged,          .  145 
Medical  Profession,  Confidential  Communications  to,  privileged  by  Statute 

in  some  of  the  States, 146 

Membership,  obligation  imposed,  ........  22 

Membership,  voluntary,      ..........  22 

Membership  not  essential  to  Ecclesiastical  Jurisdiction  in  England,      .  37 

Membership,  transfer  of,    ..........  99 

Member  has  a  right  to  withdraw,  when,         ......  22 

Members  of  the  Church  are  only  liable  to  be  dealt  with  canonically,          .  37 

Member  only  amenable  to  the  Society  to  which  he  belongs,  ...  81 

Member,  Trial  of,  Preacher  in  Charge  to  Preside, 81 

Member  can  not  be  dropped  without  Trial,    ......  102 

Methods  of  Construction,  two,  one  Liberal,  the  other  Strict,       .         .         .15 
Methods  of  Redress  are  of  two  kinds,  by  act  of  the  Parties,  or  by  due  pro- 
cess of  Law, .16 

Methods  of  discrediting  Testimony, 447 

Methodist  Church,  how  Originally  Organized, 23 

Methodism,  origin  of,  in  England,                   Kote,  23 

.Methodism,  spread  of, Note,  23 

Mind,  State  and  Condition  of,  when  Dying,  how  Proved,        .         .         .  163 

Minister,  a  Voluntary  Member, 24 

Minister,  right  to  refuse  to  receive  an  Idiot  or  Lunatic  into  the  Church,  32 

Ministerial  and  Lay  Delegates, 44 

Ministerial  Delegates,  when  eligible,      .......  44 

Miracles,  proof  of, 463 

Misfeasance,  allegation  of,  not  supported  by  proof  of  non-feasance,       .  248 

Mistake  of  Fact  constitutes  an  excuse,  when, 35 

Mode  of  stating  Facts, 82 

Monumental  Inscriptions, 152 

Moral  certainty, 431 

Motive  or  Intent, 33 

Motive  or  Intent,  the  essence  of  Crime, 34 

Municipal  Law,  design  of, 27 

Municipal  Law,  in  conflict  with  the  Law  of  Nature,  which  to  obey,        .  28 
Municipal  Laws  when  in  conflict  with  the  Divine,  how  administered  in  our 

Civil  Courts, 29 

Mural  and  other  Funeral  Inscriptions,  proof  of,  by  Secondary  Evidence,    .  208 

33 


502  INDEX. 


PAGE. 

Narration  of  Bodily  Pain,  not  admissible, 20.S 

Negative  Evidence,  by  whom  to  be  proved, 227 

Negotiable  Instrument,  party  to,  not  permitted  in  a  suit  between  other  par- 
ties, to  prove  its  invalidity,          ........  147 

Negotiable  Instrument,  party  to,  when  allowed  to  Impeach  it  by  his  own 

Testimony,          ...........  148 

Negotiable  Instrument,  party  to,  competent  to  prove  Facts  subsequent  to 

Indorsement,      ...........  148 

New  Enactment  and  Common  Usage,  how  to  be  construed,  .         .         .  13 

New  Trial,  Status  of  Defendant,  when  Granted, 424 

New  Trial  when  the  Jury  or  Committee  have  been  Tampered  with,        .  427 

New  Trial,  effect  of, 427 

Newly  discovered  Evidence,  when  a  ground  for  New  Trial,    .         .         .  426 

New  Testament,  by  whom  Written, 454 

New  Testament,  its  influence  upon  the  Nations, 461 

Notice,  what  Courts  will  take  notice  of, 85 

Notice,  what  a  Church  Tribunal  will  take  notice  of,       ...         .  85 

Notice,  Courts  ex  officio  take  notice  of  Civilized  Nations  or  States,  .         .  86 
Notice,  Courts  take  notice  of  the  existing  Sovereign  Powers,  their  Public 

Decrees,  Judgments,  and  Seals, 87 

Notice,  Courts  take  notice  of  the  Seal  of  a  Notary  Public,     ...  87 

Notice,  Courts  take  notice  of  the  Days  of  the  Week,  Month,  and  Year,     .  87 

Notice,  Church  takes  notice  of  its  own  Government,      ....  88 

Notice,  Church  takes  notice  of  its  own  Officers, 88 

Notice,  Church  takes  notice  of  the  number  of  Districts  in  an  Annual  Con- 
ference,   88 

Notice,  Church  takes  notice  of  the  Administration  and  Judicial  Authori- 
ties connected  with  any  or  either  of  the  Conferences,     ...  88 
Notice,  Church  takes  notice  of  its  Fraternal  Relations  with  other  Protestant 

Churches, 89 

Notice  to  the  Accused, 104 

Notice  should  be  served  by  Copy, 104 

Notice,  length  of  Time  before  Trial, 104 

Notice,  what  Courts  will  take  notice  of, 339 

Notice,  when  Courts  will  take  notice  of  Private  Statutes,  without  proof,    .  339 
Notice  to  produce  Private  Writing,  when  sufficient  to  admit  Secondary  Evi- 
dence of  its  contents, *  346 

Notice,  length  of  Time  required  to  produce  Writing,     ....  347 

Notice  to  produce  Private  Writings,  Party  producing  may  retain  till  Trial,  347 

Oath,  object  of, 22 

Oath,  not  administered  in  Church  Trials, 114 

Oath,  Exceptions,  when  allowed, HS 

outer  dictum,  what  is, Note,  60 

Objections  of  a  dilatory  character,  when  to  be  made,     ....  104 

Objections,  order  in  which  they  should  be  made, 104 

Objections  in  a  Church  Trial  should  be  made  in  apt  time,     ...  105 


INDEX.  503 


PAGE. 

Obligations  of  the  Oatli  dispensed  with  in  Church  Investigations,      .         .114 

Offenses  against  the  Civil  Government^          ......  27 

Offenses  against  the  Civil  Government  are  of  two  kinds,   ....  27 

Offenses,  malum  in  se,  .        . 27 

Offenses,  malum  prohihitum,     .........  27 

Offense,  signification  of  Transgression  of  the  Law,        .         .         ,       Note^     95 

Offenses,  when  joinable  in  an  Indictment,           ......  103 

Offenses,  two  or  more  united  in  the  same  complaint,      ....  103 

Official  Registers,  how  proved,  .........  339 

Officers'  Certificates, .  341 

Onus  probandi,  in  a  Church  Trial  the  same  as  at  Common  Law,       .         .  225 

Oral  Evidence,  not  admissible  as  to  Records  and  Public  Documents,     .  235 
Oral  Evidence,  not  admissible  to  prove  a  Debt  within  the  Statute  of  Frauds,  235 

Oral  Evidence,  when  admissible  to  prove  the  contents  of  a  Writing,           .  237 

Origin  of  Religious  Organizations,    ........  17 

Origin  of  Government  had  its  foundation  in  the  Patriarchal  Relation,  .  17 

Overwhelming  necessity  excepted  out  of  the  express  Letter  of  a  Statute,  14 

Pardon,  competency  by  reason  of,         . 120 

Pardon,  when  conditional,  effect  of, 120 

Parol  Evidence,  consisting  of  viva  voce  Examination 108 

Parol  admission  as  to  contents  of  Writing,  not  admissible,         .         .         .  240 

Parol  admission  made  con fessio  Juris,  effect  of,     .         .         .         ,         .  240 

Parol  admission,  co7i/essio7^c^«,         ........  240 

Parties,  right  to  Manage  their  own  Cause,     ......  106 

Parties  to  a  Churcb  Trial, 304 

Paul,  statement  of,  before  Agrippa, 446 

Pedigree,  how  proved,         .........*  152 

Pedigree  proved  by  Declarations  of  the  Family,     .....  152 

Pedigree,  what  it  Embraces, 207 

Penal,  Statutory  and  Police  Offenses,    .......  19 

Peremptory  Mandamus,  when  awarded  to  compel  the  Inspection  of  Books,  336 

Perjury,  incompetency  by  reason  of.  Conviction  of,        .         .         .         .  119 

Perjury  founded  upon  Contradictory  Oaths,        .         .         .         .         .         ..411 

Pleading  distinguishable  from  Argument,      ......  8.S 

Pontius  Pilate,  Cruelty  and  Crime  of,         ......         .  457 

Possession,  prima  facie  evidence  of  Title, 246 

Possession,  by  Tenant  at  will,  possession  of  the  Landlord,         .         .         .  246 

Power  of  the  Civil  Courts  to  compel  Christian  Burial  by  Mandamus,     .  38 
Powers  of  General  Conference,  how  divided  into  Executive,  Legislative,  and 

Judicial  Departments,    .........  46 

Powers  exercised  by  the  General  Conference, 48 

Powers  exercised  by  the  Bishops,  .•....*.  48 

Poicers  of  the  Bishops, 55 

Powers  of  a  Bishop  in  the  interval  of  the  Annual  Conference,      .        .  65 

Power  of  the  Presiding  Elder  over, .67 

Power  of  the  Preacher  in  Charge  to  call  a  Committee,          .        .        .  79 


504  INDEX. 


PAGK. 

Power,  opposition  of,  to  Christianity, .     449 

Practice  in  the  Appellate  Court,     ........         418 

Practice  in  the  Appellate  Court,  where  the  Trial  is  de  novo,       ,        .        .     418 

Preacher,  duties  of, 61 

Preacher  on  Trial,  mode  of  Proceeding  against,  .  .  ...  78 
Preacher  on  Trial,  amenable  to  the  Quarterly  Conference,     ...  77 

Preacher  on  Trial,  Jurisdiction  by  the  Annual  Conference,  over,  .  .  78 
Preacher  on  Trial  upon  Appeal  not  required  to  answer  to  New  Charges,  78 

Preachers,  Local,  evidence  must  be  reduced  to  Writing,  ....  79 
Preacher,  convicted  before  a  Lay  Tribunal,  effect  of,     .         .        .         .         101 

Preliminary, 11 

Preliminary  Investigation, 68 

Preponderance  of  Evidence, 410 

President  of  the  United  States  not  bound  to  produce  Papers,  when,  .  135 
Presiding  Elder,  power  to  preside  in  Quarterly  Conference,  in  case  of  Appeal,  60 

Presiding  Elder,  decision  of,  how  reviewed, 60 

Presiding  OfScer,  duty  of, 74 

Presiding  Officer,  province  of, 74 

Presiding  Officer,  when  he  may  take  the  case  from  the  Committee,  .  .  74 
Presiding  Officer,  to  what  extent  he  may  advise  Committee,  .         .  75 

Presiding  Officer,  has  no  authority  to  grant  a  New  Trial,  ....     415 

Presumption,  in  favor  of  Civil  Rights, 29 

Presumption  that  every  Man  knows  the  Law, 34 

Presumptions  arising  from  the  existence  of  one  of  a  number  of  connected 

Facts, 150 

Presumption,  from   one  State  of  Facts,  we  may  infer   the    existence   of 

others,       ^ 276 

Presumptions  are  either  Legal,  Artificial,  or  Natural,  .  .  .  Note,  276 
Presumptions  or  Inferences,  drawn   from  the   known  connection  between 

Facts, 277 

Presumptions  of  Law  and  of  Fact, 279 

Presumptions  divisible  into  Conclusive  and  Disputable,  .  .  .  279 
Presumptions  received  in  proof  of  the  corpus  delicti,  ....  280 
Presumptions  resorted  to,  for  the  purpose  of  detecting  the  truth  of  Positive 

Testimony, 282 

Presumption  that  a  Man  intended  the  natural  consequence  of  his  own  acts,  284 
Presumptions  arising  from  the  use  of  Deadly  Weapons,     ....     284 

Presumptions  conclusive,  when, 294 

Presumption  in  favor  of  Witness's  Veracity,    ......     404 

Presumptions  of  innocence,  when  changed  in  the  Appellate  Court,        .         419 
Presumptions  in  favor  of  the  correctness  of  the  Decision  of  the  Subordi- 
nate Tribunal,  applies  as  well  to  questions  of  Law  as  to  Fact,        .         420 

Presumptions  in  favor  of  Veracity, 440 

Presumption  that  a  statement  against  interest  is  true,  ....         440 

Presumptive  Eoidence, 276 

Presumptive  Evidence  admissible  in  Criminal  Cases,  ....  278 
Principal,  when  liable  Criminally  for  the  act  of  his  Agfent,         .         .         .     197 


INDEX.  505 


PAGE. 

Principal,  ^nma /*acie  liable  Criminally  for  smuggled  Goods,     .         .         ,     199 
Principal,  Criminally  liable  for  sale  by  Clerk  of  Intoxicating  Liquors,  .         199 

Private  Writings, 342,  297 

Private  Writing,  what  comprised  under, 342 

Private  Writings,  beyond  the  Jurisdiction  of  the  Court,  Secondary  Evi- 
dence allowable, 343 

Private  Writings  destruction  of.  Secondary  Evidence  receivable,         .        .     343 

Privies  in  Blood, 295 

Privies  in  Estates, 295 

Privies  in  Law, 295 

Privileged,  Investigations  of  the  proceedings  of  the  heads  of  the  Church,      136 
Privileged,  in  Ecclesiastical  Trials,  what  is,    .         .         .         .         .         .  136 

Privileged  Communications,  who  may  waive  the  privilege,  .         .         .     146 

Privileged  Communications,  not  waived  but  by  the  Party  making  them,  146 

Privileged  Communications,  made  to  Judges  and  Arbitrators,        .         .  147 

Privileged  Communications,  Arbitrators,  Jury  or  a  Church  Committee  can 

not  disclose  the  ground  of  their  Award  or  Verdict,  .         .         .  147 

Probationary  period,  ..........       42 

Probation,  degrees  of, .         .         .  72 

Proceedings  against  Traveling  Ministers,  .         .         .         .         .         .        .67 

Proceedings  against  Traveling  Ministers,  when  summary,      ...  68 

Proceedings  against  Preachers  on  Trial, 77 

Proceedings  against  Local  Preachers,    .......  79 

Proceedings  Preliminary  to  a  Trial, 102 

Production  of  Papers,  when  privileged,   Secondary  Evidence  of  Contents 

not  admissible,  .         .         .         .         .         .         .         .         .         .         .1.^5 

Proprietor  of  Newspaper,  prima  Jacie  Criminally  liable  for  Libel  inserted 

by  Servant, 197 

Prosecution,    right  to  state  the  Case, 106 

Prosecution    right  to  open  and  close  the  Case,       .....  106 

Public  Interest,  proof  of,  by  the  current  of  assertion,         .         .         .         .170 

Public  Interest,  matters  of,  provable  by  reputation  under  Roman  Law,  171 

Public  Matters,  confined  to  General  Facts,         .         .         .  .         .174 

Public  Matters,  include  Maps  and  Verdicts,  .         .         .         .         .         .         174 

Public  Officer,  between  Third  Persons,  may  be  proved,  without  the  produc- 
tion of  his  Commission,  .........         233 

Public  Officer,  when  he  must  show  that  he  is  an  Officer  dejure,        .        .     233 

Public  Records,  contents  of,  provable  by  copy, 237 

Public  Rumor  when  Original  Evidence, 202 

Public  Writings, 297 

Public  Documents, 334 

Public  Documents,  inspection  of,  .......         334 

Public  Documents,  Church  Tribunal  have  no  authority  to  compel  inspection,  334 

Punitive  damages, Note,     19 

Punishment,  object  of,       ......•■••       18 

Punishment,  how  Limited, 18 

Punishment,  future,  not  essential  to  competency 115 


506  INDEX. 

PAOB. 

Quarterly  Conference   Original  Jurisdiction  over  Local  Preachers  or 

Elders, 80 

Quasi  Corporations,  the  Church  when  so  regarded,        ....  22 

$M0  a?u'ffio,  when  the  subject  of  Inquiry, 19 

Quo  animo, Note,  264 

Rank  and  Condition  in  life,  may  be  given  in  Evidence  when,     .        .         .  206 

Rape,  declarations  of  Injured  Female,  when  admissible,        .         .         .  204 
Rape,  declarations  of  Female,  not  admissible  to  prove  the  Offense,  .        .205 

Recitals,  effect  of, 294 

Recitals,  when  conclusive  between  Parties  and  Privies,     ....  295 

Recitals  in  the  Bible, 462 

Records  conclusively  presumed  to  be  Correct,    ......  289 

Record,  what  is,     ..........         .  297 

Records  import  Verity,      ..........  297 

Record  not  conclusive  as  to  matters,  not  Traversable,  ....  298 

Record,  admissibility  and  effect  of,     .......         .  298 

Record  of  Conviction,  not  Evidence  against  a  Third  Party,  .         .         .  299 

Record,  not  Evidence  against  a  Stranger,           ......  300 

Record,  when  admissible  and  when  not  admissible  in  Criminal  Cases,    .  300 
Record,  when  Evidence  against  one,  who  might  have  been  a  Party,  but  vol- 
untarily renounced,         .........  301 

Record  of  Conviction  of  Principal,  when  receivable  against  the  Receiver  of 

stolen  Property, 306 

Record,  admissible,  when  offered  by  way  of  Inducement,  ....  306 

Record,  when  offered  upon  Indictment  for  Perjury,         ....  307 

Records  of  Justices  of  the  Peace,  not  within  the  Act  of  Congress,     .        .  332 

Records  provable  by  sworn  copies,          .......  333 

Records  and  Documents  sometimes  partake  of  both  a  Public  and  Private 

character, 336 

Redundancy,  difference  between  Allegation  and  Proof,      ....  254 

Relation  of  Intent  to  the  Act, 20 

Relation  of  the  Church  to  the  Civil  Government, 21 

Relation  of  the  Church  to  the  Civil  Courts, 24 

Relationship,  tacit  recognition  of,       .......         .  208 

Relevancy  of  Evidence,         . ,  257 

Relevant,  Evidence  maybe  Relevant  under  one  specification  and  not  under 

another, 261 

Relevant,  Evidence  admissible,  if  it  supports  either  count,         .        .        .  261 

Religious  sect  of  the  Jews,  destruction  of, 453 

Remedial  part  of  the  Law,  definition  of, 12 

Remoteness  of  Time,  how  considered  in  a  Church  Trial,        ...  96 

Repository,  coming  from,  when  prima  facie  Evidence,       ....  441 

Reprehended  Minister,  by  whom,  . 69 

Reputation  for  Truth  and  Veracity,  how  far  put  in  Issue,  by  proof  of  con- 
tradictory statements, 401 

Res  gestae, •  210 


INDEX.  507 


PAGE. 

^cs^este  must  grow  out  of  the  main  Transaction,         .        .         .         .  213 

Hes  ailos  acta, 304 

Restrictive  Rules  of  the  Discipline,        .......  45 

Retrospective  Legislation,         .         .         .         ......  47 

Revelation,  necessity  for,        •••......  4.32 

Revolution,  effect  of,  upon  the  Methodist  Church, 23 

Bight  to  Open  and  Close, 4U 

Right  to  Open  and  Close  belongs  to  the  Party  holding  the  AflBrmative,      .  412 
Right  to  Open  and  Close,  Committee,  duty  of,  to  pass  upon  the  whole  ques- 
tion of  Guilt  or  Innocence,         ........  413 

Rome,  Israel  subject  to,         .         . 44g 

Rome,  Epistle  to,        .         .                ••......  455 

Rules  of  Construction,          .........  13 

Rules  of  Construction  not  to  nullify  meaning  of  the  Discipline,         .         .  14 
Rules  of  Construction    that   bring   the    mischief  within  the  Letter  of  the 

Statute, 15 

Rule  for  the  Equitable  Construction  of  the  Discipline,  ....  16 

Rules  and  Regulations  for  the  Government  of  the  General  Conference,  by 

whom  made,  ...........  49 

Rules  of  the  General  Conference,  how  Enforced,        .....  49 

Rules  of  Practice  in  conducting  Examination  of  Witnesses,          .         .  386 

Scriptures,  authenticity  of,       .         .         .         .         .        .         .         .         .432 

Scriptures,  how  Courts  take  notice  of,    ......         .  438 

Scriptures,  original  manuscript  of,  destroyed,     ......     439 

Scriptures,  weight  of,  Historical  Recognition,         .....         454 

Secondary  Evidence,  admissible  in  consequence  of  the  Death  of  the  Party 

making  the  Entry,  when,     .........     151 

Secondary  Evidence,  where  Books  and  Accounts  are  Voluminous,         .  238 

Secondary  Evidence,  where  there  are  Subscribing  Witnesses,     .         .         .     362 
Secrecy,  action  of  Grand  Jury  not  inquirable  into,         .         .         .         .  135 

Seci'ets,  privileged,  what  are,     .         .         .         .         .         .         .         .         .135 

Select  number,  authority  and  powers  of,         .....         .  53 

Sentence  of  Ecclesiastical  Courts,  how  far  conclusive,        .         .         .         .317 

Sentence  of  Condemnation  by  Foreign  Courts,      .....  320 

Sheriff,  allegation  against  for  Voluntary  Escape,  supported  by  proof  of  a 

negligent  one,         ..........  249 

Sheriff,  when  Sued  in  Trespass,  may  justify  under  execution,  although  be- 
tween Third  Parties,       .........  307 

Sinister  Motives,  who  may  point  out,  .......     152 

Slander,  essence  of,  Malice, Note,     21 

Slander,  actionable  words,  proof  of, 245 

Society  incapable  of  existing  without  Rules,  .         .         .         .         .  17 

Solvency,  General  Reputation  of,  when  admissible,    .....     202 
Specification  must  be  germane  to  the  charge,        .....  103 

State,  secrets  of,  not  to  be  disclosed, 134 

State,  secrets  of,  Witness  not  allowed  to  disclose  the  name  of  his  Employer,  134 


508  INDEX. 


PAOB. 

State,  Witness  may  be  asked  whether  Information  Communicated  was  to  a 

Magistrate, 134 

State,  Official  Transactions  of  its  Officers,  Clerks,  Subordinates  and  Agents, 

privileged, 134 

States,  Comity  between, 321 

Statements  of  a  Patient  to  a  Physician,  when  admissible,      .         .         .         203 

Stephen  Girard's  Remains,  Suit  over, 40 

Subpoena,  duces  tecum, 335 

Subpoena,  ad  testificandum, 367 

Subpoena,  office  of, 368 

Subscribing  Witnesses,  proof  by  one  sufficient, 232 

Subscribing  Witness,  if  in  the  Jurisdiction  of  the  Court,  must  be  called,  354 
Subscribing  Witness,  effect  of,  making  parties  to  the  Instrument  Competent,  355 
Subscribing  Witness,  presence  of,  when  Instrument  is  executed,  .  ,  355 
Subscribing  Witness  to  an  Official  Bond  need  not  be  called,  .  .  .  356 
Subscribing  Witness  where  the  Instrument  is  not  directly  in  issue  consti- 
tutes an  exception  to  the  Rule, 356 

Subscribing  Witness,  when  Dead  or  out  of  the  Jurisdiction  of  the  Court,       357 
Subscribing  Witness,  when  infamous  or  when  not  able  to  remember,  .     357 

Subscribing  Witness,  when  Blind, 357 

Subscribing  Witness,  where  Instrument  is  produced  on  notice,  .         .     358 

Subscribing  Witnesses,  proof  of,  by  one  sufficient,  ....         361 

Subscribing  Witnesses,  proof  of.  Handwriting  of,       .         .         *         .         .     363 

Substance  of  the  Issue, 243 

Superannuated  Preacher,  how  Tried, 75 

Superannuated  or  Supernumerary  Preacher,  amenable  to  the  Conference  in 

which  he  Resides, 76 

Supernumerary  Preacher,  how  Tried,     .......  75 

Surrogate,  Judge  of  Probate,  Orphan's  Court,  power  of  over  Ecclesiastical 

Matters, .         313 

Technical  Terms,  when  necessary  in  a  complaint,     .         •         .         .        .82 
Terror,  complaint  of,  provable  by  other  Witnesses,         ....  206 

Testimony  of  Deceased  Witnesses,  on  a  former  Trial,        ....     175 

Testimony  of  a  Deceased  Witness,  is  admissible,  between  the  same  Parties, 

upon  a  point  that  was  Investigated,     .......     175 

Testimony  of  Deceased  Witnesses,  in  some  of  the  Cases,  limited  to  Civil 

Cases, 176 

Testimony  of  Deceased  Witnesses,  not  admissible  in  a  Criminal  Cause,         176 
Testimony  of  a  Deceased  Witness,  before  admissible,  Parties  must  be  the 

same  or  in  privity, 177 

Testimony  of  Deceased  Witness,  where  one  Defendant  was  added,     .        .     177 
Testimony  of  Deceased  Witnesses  is  sufficient,  if  the  substance  of  his  Tes- 
timony be  proved, 180 

Testimony,  substance  of,  when  sufficient, 182 

Testimony,  when  Witness  Absent  or  Insane, 183 

Testimony,  when  place  of  Residence  of  Witness  can  not  be  ascertained,        185 


INDEX.  609 


PAOB. 

Testimony  may  be  relevant  for  one  purpose  and  irrelevant  for  another,     .  261 

Testimony  in  chief,  Party  calling  is  bound  to  ask  all  Material  Questions,  387 

Theocratical  Government,  form  of, 31 

Theocratical  Government,  example  of, 31 

Things  judicially  taken  notice  of, 86 

Time  and  Place  necessary  to  be  stated  in  Complaint,    ....  84 

Time  and  Place  not  necessary  to  be  proved, 84 

Time,  proof  of,  as  laid,  not  essential, 248 

Tradition, 456 

Traditionary  Evidence  with  reference  to  Boundaries,     .         .         .         .  168 

Transfer,  jurisdiction  over,         .........  101 

Transfer,  defect  of  Church  Discipline, 102 

Translation  of  the  Gospel  and  Epistles  into  different  Languages  before  the 

time  of  Jerome,      . 454 

Traveling  Preacher,  refusal  to  attend  to  work  assigned  him,  how  dealt  with,  70 

Trespass  qiiare  clausum /regit, 313 

Trial  of  a  Bishop  de  novo, 66 

Trial  by  Conference  Committee, 76 

Trial  under  §g  1  and  2  of  ^  203  of  Conference  Committee,         ...  76 

Trial  of  Member,  . 81 

Trial  of  Accused  Member,  before  whom  Tried, 81 

Tribunals  of  the  Chnrch, 62 

Triers  of  Appeals,  for  Trial  of  Bishop, 64 

Triers  of  Appeal,  challenge  of, 64 

Triers  of  Appeal,  number  of  for  Trial  of  Bishop,       .....  65 

Twice  Tried  for  the  same  Offense, 94 

Twice  Tried  for  the  same  Offense,  where  the  Offense  is  against  two  Govern- 
ments,      94 

Twice  Tried  for  the  same  Offense,  where  such  Offense  involves  a  Civil  In- 

jary,        .         .         .         • 95 

Twice  Persecuted  for  the  same  Offense,  meaning  of,  criminally,  by  the  same 

Government, 95 

Universalist,  Competency  of,  as  a  Witness, Note,  117 

Unnecessary  particularity  in  an  Indictment,  effect  of,    .         .         .        .         251 

Usage,  can  not  exist  in  a  Young  Society,  .         .         .        .         .         .17 

Usage  of  Slow  Growth, 17 

Variance,  between  Allegations  and  Proof, 255 

Variance,  between  a  Record,  Name  of  Parties,  amount  of  Judgment,  etc., 

effect  of, 256 

Venue,  change  of,  ..........  61 

Verdict,  presumptions  in  favor  of,      .......         .     290 

Verdicts  and  Judgments,  receivable  against  Parties  on  whose  account  the 

action  was  instituted  or  defended,       .......     301 

Verdicts  and  Judgments,  when  admissible  in  Evidence,  considered  with  ref- 
erence to  the  Parties, 304 


510  INDEX. 


PAGE. 

Verdict  and  Judgment  in  a  Criminal  Case  not  admissible  in  a  Civil  Action,  304 

Verdicts  and  Judgments,  when  admissible  to  establish  the  fact  of  Rendition,  305 

Vinculo  Matrimonii  Divorce  does  not  destroy  competency,  .         .         .  128 

Vindicatory  part  ot  the  Law,  definition  of,          ......  12 

Voir  dire,  contents  of  Written  Instrument,  upon,  may  be  proved  by  Parol,  239 

Voluminous  Written  Documents,  how  proved, 238 

Waivek  of  Legal  Privilege, 94 

Warranty,  estoppel  of  the  Grantor  thereby, 295 

Waste  when  averred,  must  be  proved, 245 

Weight  of  Evidence, 410 

When  and  how  to  take  an  Appeal, 416 

Who  are  liable  to  be  dealt  with  under  Disciplinary  Rules  of  the  Church,    .  32 

Who  are  amenable  to  the  Church,           .......  37 

Wife  not  admitted  as  a  Witness  against  the  Husband  after  Marriage  is  at 

an  end,  . .  127 

Wife  not  competent  to  prove  the  non-access  of  the  Husband,     .         .         .  128 
Wife  competent  as  a  Witness  to  prove  entries  made  by  her  in  a  Book,  .  129 
Wife  incompetent  as  a  Witness  against  a  co-defendant  tried  with  her  Hus- 
band,        129 

Wife,  competent  where  her  Husband  was  jointly  indicted  with  another  but 

Tried  separately, 129 

Wife  incompetent  if  she  is  Married  at  the  time  she  is  offered  as  a  Witness,  130 
Wife  competent  as  a  Witness  for  her  Husband,  where  Testimony  could  be 

used  against  him,         ........           Note,  130 

Wife's  Letters,  expressive  of  her  feelings,  written  before  Adultery,  admissible,  204 

Willful  Wrong,  difference  between,  and  Gross  Carelessness,       ...  35 

Witness,  when  incapable  of  giving  Evidence,         .         •         .         .         .  110 

Witness,  laboring  under  defect  of  Understanding, 110 

Witness,  want  of  Religious  Belief,          .                  110 

Witness,  infamous  in  consequence  of  Conviction, 110 

Witness,  now  competent,  though  interested,  .         .         .         .         .         .  110 

Witness,  when  liable  for  a  failure  to  Appear  and  Testify,  ....  368 

Witness,  voluntary  appearance  of,          .......  368 

Witness,  beyond  the  Jurisdiction  of  the  Court,  ......  369 

Witness,  Courts  of  one  State  have  no  authority  to  subpoena  a  Witness  in  an- 
other,            369 

Witness,  not  compellable  by  Federal  process  to  go  beyond  the  limits  of  his 

State, 369 

Witness,  not  bound  to  attend  Church  Trial, 369 

Witness,  when  liable  to  be  dealt  with  canonically  for  Contempt  of  Church 

Authority, 370 

Witness,  competency  of,  to  be  judged  by  the  Court, 378 

Witness,  order  of  Examination, 381 

Witness,  who  has  attempted  to  persuade  other  Witnesses  from  being  pres- 
ent, effect  of, 383 


INDEX.  511 


PAGE. 

Witness,  who  stood  in  the  relation  of  kept  mistress,  may  be  inquired  of,  as 

to  such  relation, 384 

Witness,  who  attempts  to  suborn  other  Witnesses,  how  contradicted,  .     384 

Witness  only  to  Testify  to  Facts, 384 

Witness  may  refresh  his  recollection  by  Written  Memoranda,     ,         .         .     384 

388 

.  403 

402 

.  402 

403 

.   42 

.  42 

.  416 


Witness,  power  of  the  Officer  at  a  Church  Trial,  to  recall, 

Witness  may  refuse  to  Answer,  when, 

Witness,  when  compelled  to  Answer, 

Witness  not  competent  to  Criminate  himself, 

Witness,  duty  of  the  Court  to  protect,  . 

Withdrawal  of  Member,  right  of, 

Withdrawal  of  Member,  voluntary,  when, 

Writ  of  Error,  in  the  Nature  of  an  Appeal, 

Writing,  necessity  of,  where  the  Law  requires  it,  .  .         .         .  234 

Writing  where  it  exists,  must  be  produced  or  its  abscence  accounted  for,  .     235 

Writing,  where  it  pertains  to  a  Collateral  Fact,  need  not  be  produced,  .  235 

Writing,  when  the  ultimate  Fact  to  be  proved, 236 

Writing,  when  its  existence  comes  out  on  cross-examination,  must  be  pro- 
duced,          236 

Writing,  when  existence  of,  brought  out  by  defendant,  need  not  be  produced,  236 

Writing,  contents  of,  how  proved, 237 

Writings  are  either  Public  or  Private, 279 

Writings,  in  possession  of  opposite  Party,  upon  notice  to  produce,  Second- 
ary Evidence  admissible,    .........     346 

Written  Evidence, 297,  108 

Written  Evidence,  better  than  Oral, 234 

Written  Instruments,  production  of,  how  enforced,         ....  345 
Written  Memoranda,  when  may  be  used  by  a  Witness  to  refresh  his  Mem- 
ory,          385 


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